Delhi District Court
State vs Manoj Kumar Shah on 16 February, 2024
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR,
ADDL. SESSIONS JUDGE (FTC)-01,
CENTRAL, TIS HAZARI COURTS, DELHI
CNR No. DLCT01-000789-2012
SC No.28038/2016
FIR No.52/2012
U/s 394/328/411/34 IPC
P. S. Karol Bagh
STATE VERSUS MANOJ KUMAR SHAH & ANR.
(i) SC No. of the case : 28038/2016
(ii) Date of commission of offence : 12.04.2012
(iii) Name, parentage and address : 1. Manoj Kumar
of accused Shah
S/o Bhagwat
R/o Vill. Sumer Ganj
P.S. Salempur,
Dumaria, Distt.
Vaishali, Bihar.
2. Surinder (PO
vide order dated
01.02.2013)
S/o Kamleshwar
R/o Vill. Sumer Ganj
P.S. Salempur,
Dumaria, Distt.
Vaishali, Bihar.
(iv) Offences complained of : 394/328/411/34 IPC
(v) Plea of the accused : Pleaded not Guilty
FIR No.52/2012 Page 1 of 84
U/s 394/328/411/34 IPC
P. S. Karol Bagh
State vs. Manoj Kuma Shah & Anr.
(vi) Final order : Acquittal
(vii) Date of such order : 16.02.24
Date of Institution : 16.08.2012
Date of Judgment reserved on : 22.01.2024
Date of Judgment : 16.02.2024
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION:-
1. In the present case a PCR call DD No.25A dated 12.04.2012 was received by Ct. Ramesh who reached at the spot and met HC Chander Mohan. At the spot they met two boys Akshay and Arjun who had reported that their mother was bound / tied, gagged and beaten by accused Pramod with his two accomplices and after committing robbery they had ran away. The complaint was given by Ms. Rashmi Arora/PW-1 vide Ex.PW1/A on the basis of which further investigation was conducted. It is mentioned in the complaint that the children to PW-1 went to school around 6:30 AM in the morning. PW-1 and her husband had stayed back at home. Around 1:00 PM her husband went for business work. Their domestic servant namely Sh. Pramod R/o State of Bihar aged about 20-21 years had left FIR No.52/2012 Page 2 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
after working for one month in their house. He had come on that day around 3:00 PM and told that his friends are sitting outside the house in the park who need drinking water. The PW- 1 started watching TV in her bedroom and after some time accused Pramod came with two boys in the house. One tall boy with rope of nylon in his hand had threatened PW-1 and hit her with punches. PW-1 was beaten and her hands were tied by the said nylon rope. Accused Pramod had tied the mouth of PW-1 by a shawl and the third boy had put a hankie inside her mouth and covered her face with a shirt. They had threatened if PW-1 make noise then they will kill her children. The accused persons had tied the legs of PW-1 and closed her in the bathroom. Door of the bathroom was closed. After 10 minutes she had successfully opened her legs and hands and in the meanwhile her children had come home. The children had seen three accused running out of house. PW-1 had narrated the incident to her two children and the children had raised alarm. However the accused had successfully ran away. A PCR Van standing in the street was intimated. In the house cash of Rs.50,000/-, one gold ring, one diamond ring having green sapphire on his head, one stone of red ruby, wrist watch of make Diesel of her husband, silver coins, 4 mobile phones having 4 different mobile numbers and one statue of God were stolen. PCR had taken FIR No.52/2012 Page 3 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
PW-1 to the hospital. IO/SI Satender Kumar had investigated the offence who had submitted the chargesheet. One of the accused namely Surinder Kumar could not be found against whom proceedings under Section 82 Cr. P. C. were initiated and who was declared PO. Accused Amodh Kumar @ Pramod and accused Manoj Kumar are mentioned at column No.11. Accused Amodh Kumar @ Pramod was held juvenile by learned MM, Central District, Delhi on the date of commission of offence on 12.04.2012 and who was referred to JJB for 13.08.2012. Hence the present case was committed against accused Manoj Kumar Shah.
2. Charge was framed against the accused Manoj Kumar Shah on 18.08.2012 regarding the commission of offence under Section 328/392/394/411/34 IPC to which he had pleaded not guilty and claimed trial. Prosecution had examined PW-1 to PW-31 as total number of prosecution witness in the present case. Statement of accused Manoj Kumar Shah was recorded under Section 313 Cr. P. C. on 04.09.2019 and accused has preferred not to lead evidence in defence. It is stated by the accused in his statement that he is a vegetable seller and after the present case he had returned to his native village. It is stated that he was implicated falsely only because of the reason that he belongs to the same village to which accused Amodh @ Pramod FIR No.52/2012 Page 4 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
belongs.
3. The offence against which the accused is also charged with is Section 328 IPC. The necessary ingredients of which are laid down in the citation titled as Sunil Mishi @ Silly vs. State of NCT of Delhi in CRL. A. 610/2013 & Harmeshlal s/o Ajit Singh vs. The State of Maharashtra 2016 ALL MR (Cri) 1980.
30. Section 328 I.P.C. reads thus :-
"Causing hurt by means of poison etc, with intent to commit an offence. Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating, or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
31. A perusal of the aforesaid section would show that the following elements are essential to constitute an offence under Section 328 IPC:-
i) Some person or persons should administer or cause to be taken by any person any poison or stupefying, intoxicating or unwholesome drug, or other thing and;
ii) The intention of the person or persons mentioned in (i) should be to cause hurt to the person concerned, or should be to commit or to facilitate commission of an offence or there should be knowledge on the part of the person or persons that the result of his act or their act was likely to cause hurt to the concerned persons.
32. Both these elements should exist conjunctively, then and then alone would the offence be complete and the person or persons, as the case may be, would be guilty of the offence contained in this section.
FIR No.52/2012 Page 5 of 84U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
Xxxxxxxxxxxxx
38. Dealing with the effect of non cross-examination, Supreme Court in Laxmibai (dead) Thr. LRs and Anr. v. Bhagwantbuva (dead) Thr. LRs and Ors., AIR 2013 SC 1204 observed as under:-
"40. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses. (See: Khem Chand v. State of Himachal Pradesh, AIR 1994 SC 226; State of U.P. v. Nahar Singh (dead) and Ors., AIR 1998 SC 1328; Rajinder Pershad (Dead) by L.Rs. v. Darshana Devi (Smt.) AIR 2001 SC 3207; and Sunil Kumar and Anr. v. State of Rajasthan, AIR 2005 SC 1096)."
Xxxxxxxxxx FIR No.52/2012 Page 6 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
43. Hon'ble Supreme Court in Ganesh Lal v. State of Rajasthan, (2002) 1 SCC 731 elaborately discussed regarding the presumption laid down under Section 114 Evidence Act:
"12. Section 114 of the Evidence Act provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public private business, in their relation to facts of the particular case. Illustration (a) provides that a man who is in possession of stolen goods soon after the theft may be presumed by the Court to be either the thief or one who has received the goods knowing them to be stolen, unless he can account for his possession. The presumption so raised is one of fact rather than of law. In the facts and circumstances of a given case relying on the strength of the presumption the Court may dispense with direct proof of certain such facts as can be safely presumed to be necessarily existing by applying the logic and wisdom underlying Section 114. Where offences, more than one, have taken place as part of one transaction, recent and unexplained possession of property belonging to deceased may enable a presumption being raised against the accused that he is guilty not only of the offence of theft or dacoity but also of other offences forming part of that transaction."
xxxxxxx Harmeshlal
9. Once the presence of the appellant in the company of the complainant from Chandrapur through drinking of tea by complainant given to him by the appellant till the time the complainant woke up from his slumber only to find himself as left stranded by the appellant is established, a situation of drawing presumption by application of Section 114 of the Indian Evidence Act arises. Section 114 lays down that the Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Therefore, the presumption would be that only FIR No.52/2012 Page 7 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
the appellant was responsible for drowsiness of the complainant which led to his slipping into unconscious state and it was intentionally induced by the appellant by administering him some stupefying or unwholesome drug. This presumption could have been rebutted by the appellant by bringing on record some explanation or some circumstances showing a probability that there may have been some other person involved in the case, who may have been responsible for drowsiness and unconscious state of the complainant. But, there is neither any explanation nor any circumstance brought on record in order to probablise the defence of the appellant that he had got nothing to do with the complainant. In fact, the defence of the appellant is of total denial, but as stated earlier, he has failed to establish that he had no connection with the complainant whatsoever, rather his presence with the complainant all throughout from Chandrapur till the time the complainant regained his consciousness after being into state of unconsciousness has been established in a reasonable manner and the presumption arising therefrom has not been rebutted by him.
10. Administration of substance or drug had its own consequence in this case which was in the nature of rendering the appellant incapacitated thereby fulfilling the second ingredient of the offence punishable under Section 328 I.P.C. The second ingredient is about administering a poison or stupefying substance etc. with an intention to cause hurt or injury or commit an offence or facilitate commission of an offence or with the knowledge that the act is likely to result in causing of hurt. Hurt as defined in Section 319 IPC is bodily pain, disease or infirmity. Unconsciousness is a mental and physical condition of a person which incapacitates him completely in the sense that he is incapable of doing anything. Dictionary meaning of the term 'infirmity' is physical or mental weakness (See: Concise Oxford Dictionary, Indian Edn. p.729). If physical or mental weakness or both make a man infirm, his being in unconscious state will make him all the more infirm. Therefore, inducing unconsciousness of a person by means of a poison, stupefying substance etc. as contemplated under Section 328 IPC amounts to causing of hurt.
11. Learned Counsel for the appellant has strenuously argued that as there was no medical examination of the appellant, nothing can be said with any amount of certainty that the tea that was given to the complainant was mixed with any stupefying substance. It is true that FIR No.52/2012 Page 8 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
no medical examination of the complainant has been carried out. But, we have to take into account the attending circumstances which rendered redundant the conduct of the medical examination of the complainant. According to the version of the complainant, the substance or drug administered to him in the evening of 01/01/2012 had its effect on his mind and body as a result of which he went into state of unconsciousness and came out of it only in the morning of 02/01/2012. As seen from the evidence of P.W.-7 A.P.I. Prakash Masal, who recorded the first information report, the complainant was in a dilemma as to whether the FIR should be lodged at Chandrapur or at Nagpur and ultimately it was lodged in the night of 03/01/2012 at Nagpur. By this time it was too late in the day to refer the complainant for any medical examination. It was obvious that by that time whatever effect the substance or the drug had on the mind and body of the complainant may have been weaned away. In these circumstances the medical examination of the complainant had become redundant. Therefore, I find that circumstances of the case have offered reasonable justification for absence of medical examination of the complainant in this case, which must be appreciated. Then, what remains is the testimony of P.W.-1 Vasant and I have already found that the core part of his testimony is reliable. There is no reason for the complainant to falsely implicate the appellant in this case. No probable explanation has been given by the appellant for leaving the complainant in unconscious condition some time in the night of 01/01/2012 till early morning of 02/01/2012 and, therefore, by way of adverse inference, it has to be concluded that the appellant was responsible for drowsiness and unconsciousness state of the complainant, which was induced by some substance or drug administered through tea to the complainant by him. Xxxxxxx
13. As regards the second offence punishable under Section 394 I.P.C., I am of the view that recovery of some incriminating article at the instance of the appellant was necessary in order to reasonably connect the appellant with the offence of robbery. The reason being that even though the appellant had been found to have left the complainant in unconscious state at a spot at Ajani square, Nagpur, the possibility of some other persons arriving at the said spot later on and robbing the complainant of his car, valuables, etc. cannot be ruled out. It is likely the appellant may be or may not FIR No.52/2012 Page 9 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
be interested in taking away the car and other articles. It is also likely that he may have had some other motive in his mind. But, only because the appellant had done something criminal against the complainant, further inference that the appellant must also have robbed the complainant of valuable articles or car or cash and important documents, cannot be reasonably made till the time something belonging to complainant is recovered at appellant's instance and if not, the possibility of involvement of some other person cannot be said to be reasonably ruled out in this case. This possibility having not been ruled out in the instant case, there being no recovery whatsoever at appellant's instance, even the car was found in abandoned state on some road in State of Punjab, I find that learned Assistant Sessions Judge has committed illegality in recording a finding that the prosecution has also brought home to the appellant his guilt for an offence punishable under Section 394 I.P.C. The finding recorded by the Assistant Sessions Judge in this regard, therefore, needs to be quashed and set aside.
3.1 The first ingredient the prosecution has to prove against the accused is that they had administered or had caused to be taken PW-1 and PW-6 who is husband of PW-1 any poison or stupefying, intoxicating and unwholesome drug or other thing. Hence there can be any substance to cause such effect after administration or attempt to administer such substance to satisfy the first ingredient. PW-1 had deposed that she had to take lunch at the house of her mother on that day on 12.04.2012 and she did not take food at home. The prosecution has to establish that attempt if any caused upon PW-1 by the accused person under Section 328 IPC. Other than this prosecution must prove that the food taken on 12.04.2012 at his residence by PW-6 was so poisonous to come FIR No.52/2012 Page 10 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
under category of Section 328 IPC. PW-19 HC Chander Mohan had deposed that PW-6 was not well on that day and he had vomited. PW-6 was taken to B L Kapoor Hospital by his relative. PW-21 had deposed that SI Satender had seized the exhibits from the spot. PW-25 Dr. Harpreet Singh had medically examined PW-6 on the complaint of consumption of some unknown poisonous substance who had lunch at home at 1:00 PM. The patient was feeling drowsy. The sample of his urine was taken and his MLC is Ex.PW25/A. However, PW-25 had nowhere proved the report of urine sample taken from PW-6 nor it is proved any where that any kind of poisonous or intoxicating substance could be found in such sample. Hence deposition of PW-25 does not help the case of the prosecution. PW-30 SI Satender Kumar had investigated the case and when he had reached at the spot he found PW-6 Sh. Pawan Arora feeling uneasiness. PW-6 had vomited on the floor near washbasin outside the bathroom. PW-6 had lunch at home. PW-30 SI Satender Kumar had lifted the vomited material from the floor and seized it vide memo Ex.PW1/G and sealed it with the seal of SK. The urine sample was taken into possession by PW-30 vide seizure memo Ex.PW19/A. The FSL report is Ex.PX which is admitted document under Section 294 Cr. P. C. The result of examination report mentions that metallic poisons Ethyl and Methyl, cyanide phosphide, alkaloids, barbiturates, tranquilizers FIR No.52/2012 Page 11 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
and pesticides could not be found in Ex.1 & 2. Ex.1 is the vomiting of PW-6 alongwith MLC with urine sample of PW-6. Ex.2 is brown colour turbid liquid. Hence as per the said FSL report no poison was established in the collected samples against the accused persons. Hence prosecution has failed to establish the first ingredient of Section 328 IPC.
3.2 The second ingredient must be established to show that the intention of such person was to cause hurt to PW-1 or PW-6 to facilitate the commission of the offence or there was such knowledge on the part of the accused person. The requirement of Section 328 IPC is that both the ingredients must be established conjunctively. It is already held above that the first ingredient is not established by the prosecution and in such circumstance the prosecution has failed to establish the commission of offence of Section 328 IPC. Further the prosecution has failed to establish facilitation of commission of offence under Section 392/394 IPC against the accused persons as discussed below hereunder and for the sake of brevity the same is not repeated herein. In view of the above it is held that the prosecution has failed to prove the ingredients laid under Section 328 IPC and the accused persons stand acquitted of the above offence.
4. The accused is further charged under Section 392/394 IPC. The necessary ingredients of which are detailed in citation titled as FIR No.52/2012 Page 12 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
State of Maharashtra v. Joseph Mingel Koli (1997) 2 Crimes 228 (Bom). Section 395 IPC provides punishment for dacoity. It was held in case titled State of Maharashtra v. Joseph Mingel Koli (1997) 2 Crimes 228 (Bom) that when robbery is either committed or an attempt to commit it is made by five or more person than all such persons, who are present or aiding in its commission or in an attempt to commit it, would commit the offence of dacoity. The said definition is laid down u/Sec. 391 IPC. It is laid down in case titled Ganesan v. State represented by Station House Officer in Crl. Appeal no. 903/2021 from Hon'ble Supreme Court of India dated 29.10.2021 at para no. 12.3 that as per Section 397 IPC if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. It was further held at para no. 12.4 that the only difference between robbery and dacoity would be number of persons involved in co-jointly committing or attempt to commit a robbery. It was further held that the word used u/Sec. 390, 392 to 395, 397 and 398 of IPC is 'offender'. It was further held that for the aforesaid act the accused cannot be convicted on the basis of constructive liability and only the 'offender' who 'uses any deadly weapon' can be punished.
FIR No.52/2012 Page 13 of 84U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
However u/Sec. 391 IPC 'dacoity' and Section 396 IPC which is dacoity and murder then the accused can be convicted on the basis of constructive liability. The necessary ingredients of dacoity u/Sec. 397 IPC were laid down at para no. 12.6 of the above judgment titled Ganesan v. State (supra) and the relevant para are reproduced hereasunder:
12.2 To appreciate the aforesaid submissions the relevant provisions with respect to 'robbery' and 'dacoity' are required to be referred to.
The relevant provisions would be Section 390 IPC to Section 398 IPC which read as under:
"390. Robbery.--In all robbery there is either theft or extortion. When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear,induces the person so put in fear then and there to deliver up the thing extorted. Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
391. Dacoity.--When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present 1.Subs. by Act 26 of 1955, s. 117 and the Sch., for "transportation for life" (w.e.f. 1-1-1956). 99 and aiding such commission or attempt, amount to five or more, every person so FIR No.52/2012 Page 14 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
committing, attempting or aiding, is said to commit "dacoity".
392. Punishment for robbery.--Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
393. Attempt to commit robbery.--Whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.
394. Voluntarily causing hurt in committing robbery.--If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with 1 [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
395. Punishment for dacoity.--Whoever commits dacoity shall be punished with 1 [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
396. Dacoity with murder.--If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or 1 [imprisonment for life], or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
397. Robbery, or dacoity, with attempt to cause death or grievous hurt.
--If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
398. Attempt to commit robbery or dacoity when armed with deadly weapon.--If, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment FIR No.52/2012 Page 15 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
with which such offender shall be punished shall not be less than seven years."
12.3 As per Section 390 IPC, for 'robbery' there is either theft or extortion. When in the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt, or of instant wrongful restraint the theft can be said to be 'robbery'. In similar situation the 'extortion' can be said to have committed 'robbery'. As per explanation to Section 390 IPC the offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
Section 391 IPC defines 'dacoity'. When five or more persons conjointly commit or attempt to commit a robbery, the accused then can be said to have committed the 'dacoity'.
As per Section 392 IPC whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. However, if the robbery is committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years. As per Section 393 IPC even an attempt to commit robbery is punishable with rigorous imprisonment for a term which may extend to seven years with fine. As per Section 394 IPC if any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.
Section 395 IPC provides for punishment for 'dacoity'. Whoever commits dacoity shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. In case of dacoity with murder if any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years with fine.
FIR No.52/2012 Page 16 of 84U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
As per Section 397 IPC if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. Similarly, if, at the time of committing robbery or dacoity the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years.
12.4 On conjoint reading of the aforesaid provisions, commission of 'robbery' is sine qua non. The 'dacoity' can be said to be an exaggerated version of robbery. If five or more persons conjointly commit or attempt to commit robbery it can be said to be committing the 'dacoity'. Therefore, the only difference between the 'robbery' and the 'dacoity' would be the number of persons involved in conjointly committing or attempt to commit a 'robbery'. The punishment for 'dacoity' and 'robbery' would be the same except that in the case of 'dacoity' the punishment can be with imprisonment for life. However, in the case of 'dacoity with murder' the punishment can be with death also. However, in a case where the offender uses any deadly weapon or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person the imprisonment with which such offender shall be punished shall not be less than seven years. Learned Counsel appearing on behalf of the appellants have rightly submitted that to bring the case within Section 397 IPC, the offender who uses any deadly weapon, or causes grievous hurt to any person shall be liable for minimum punishment under Section 397 IPC. Section 392 and Section 390 IPC are couched in different words. In Sections 390, 394, 397 and 398 IPC the word used is 'offender'. Therefore, for the purpose of Sections 390, 391, 392, 393, 394, 395, 396, 397, 398 IPC only the offender/person who committed robbery and/or voluntarily causes hurt or attempt to commit such robbery and who uses any deadly weapon or causes grievous hurt to any person, or commits to cause death or grievous death any person at the time of committing robbery or dacoity can be punished for the offences under Sections 390, 392, 393, 394, 395 and 397 and 398 IPC. For the aforesaid the accused cannot be convicted on the basis of constructive liability and only the 'offender' who 'uses any deadly weapon....' can be punished. However, so far as Section 391 IPC 'dacoity' and Section 396 IPC - 'dacoity with murder' is concerned an accused can be convicted on the basis of constructive liability, however the only requirement would be the FIR No.52/2012 Page 17 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
involvement of five or more persons conjointly committing or attempting to commit a robbery - dacoity/dacoity with murder.
12.5 At this stage, the decision of this Court in Shri Phool Kumar (Supra) is required to be referred to. In the aforesaid decision this Court has observed and considered Sections 397 and 398 IPC and on interpretation of the aforesaid provisions, it is observed and held in paragraphs 5 to 7 as under:
"5. Section 392 of the Penal Code provides: "Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years." The sentence of imprisonment to be awarded under Section 392 cannot be less than seven years if at the time of committing robbery the offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person: vide Section 397. A difficulty arose in several High Courts as to the meaning of the word "uses" in Section 397. The term "offender" in that section, as rightly held by several High Courts, is confined to the offender who uses any deadly weapon. The use of a deadly weapon by one offender at the time of committing robbery cannot attract Section 397 for the imposition of the minimum punishment on another offender who had not used any deadly weapon. In that view of the matter use of the gun by one of the culprits whether he was accused Ram Kumar or somebody else, (surely one was there who had fired three shots) could not be and has not been the basis of sentencing the appellant with the aid of Section 397. So far as he is concerned he is said to be armed with a knife which is also a deadly weapon. To be more precise from the evidence of PW 16 "Phool Kumar had a knife in his hand". He was therefore carrying a deadly weapon open to the view of the victims sufficient to frighten or terrorize them. Any other overt act, such as, brandishing of the knife or causing of grievous hurt with it was not necessary to bring the offender within the ambit of Section 397 of the Penal Code.
6. Section 398 uses the expression "armed with any deadly weapon" and the minimum punishment provided therein is also seven years if at the time of attempting to commit robbery the offender is armed with any deadly weapon. This has created an anomaly. It is unreasonable to think that if the offender who merely attempted to commit robbery but did not FIR No.52/2012 Page 18 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
succeed in committing it attracts the minimum punishment of seven years under Section 398 if he is merely armed with any deadly weapon, while an offender so armed will not incur the liability of the minimum punishment under Section 397 if he succeeded in committing the robbery. But then, what was the purport behind the use of the different words by the Legislature in the two sections viz. "uses" in Section 397 and "is armed" in Section 398. In our judgment the anomaly is resolved if the two terms are given the identical meaning. There seems to be a reasonable explanation for the use of the two different expressions in the sections. When the offence of robbery is committed by an offender being armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in his mind, the offender must be deemed to have used that deadly weapon in the commission of the robbery. On the other hand, if an offender was armed with a deadly weapon at the time of attempting to commit a robbery, then the weapon was not put to any fruitful use because it would have been of use only when the offender succeeded in committing the robbery.
7. If the deadly weapon is actually used by the offender in the commission of the robbery such as in causing grievous hurt, death or the like then it is clearly used. In the cases of Chandra Nath v. Emperor [AIR 1932 Oudh 103] ;Nagar Singh v. Emperor [AIR 1933 Lah 35] and Inder Singh v. Emperor [AIR 1934 Lah 522] some overt act such as brandishing the weapon against another person in order to overawe him or displaying the deadly weapon to frighten his victim have been held to attract the provisions of Section 397 of the Penal Code. J.C. Shah and Vyas, JJ. of the Bombay High Court have said in the case of Govind Dipaji More v. State [AIR 1956 Bom 353] that if the knife was used for the purpose of producing such an impression upon the mind of a person that he would be compelled to part with his property, that would amount to 'using' the weapon within the meaning of Section 397. In that case also the evidence against the appellant was that he carried a knife in his hand when he went to the shop of the victim. In our opinion this is the correct view of the law and the restricted meaning given to the word "uses" in the case of Chand Singh [ILR (1970) 2 Punj and Har 108] is not correct."
12.6. The aforesaid view has been subsequently reiterated by this Court in the case of Dilawar Singh (Supra) and in paragraphs 19 to 21 it is observed and held as under:
FIR No.52/2012 Page 19 of 84U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
"19. The essential ingredients of Section 397 IPC are as follows:
1. The accused committed robbery.
2. While committing robbery or dacoity
(i) the accused used deadly weapon
(ii) to cause grievous hurt to any person
(iii) attempted to cause death or grievous hurt to any person.
3. "Offender" refers to only culprit who actually used deadly weapon.
When only one has used the deadly weapon, others cannot be awarded the minimum punishment. It only envisages the individual liability and not any constructive liability. Section 397 IPC is attracted only against the particular accused who uses the deadly weapon or does any of the acts mentioned in the provision. But the other accused are not vicariously liable under that section for acts of the co-accused.
20. As noted by this Court in Phool Kumar v. Delhi Admn. [(1975) 1 SCC 797 : 1975 SCC (Cri) 336 : AIR 1975 SC 905] the term "offender" under Section 397 IPC is confined to the offender who uses any deadly weapon. Use of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 IPC for the imposition of minimum punishment on another offender who had not used any deadly weapon. There is distinction between "uses" as used in Sections 397 IPC and 398 IPC. Section 397 IPC connotes something more than merely being armed with deadly weapon.
21. In the instant case admittedly no injury has been inflicted. The use of weapon by offender for creating terror in mind of victim is sufficient. It need not be further shown to have been actually used for cutting, stabbing or shooting, as the case may be. [See Ashfaq v. State (Govt. of NCT of Delhi) [(2004) 3 SCC 116 : 2004 SCC (Cri) 687 : AIR 2004 SC 1253]."
5. The first ingredient the prosecution has to prove that the accused has committed robbery. Robbery is only an aggravated form of the offence of theft or extortion in the use of violation of death, hurt or restraint in the same process. Even the attempt to commit such violence is punishable as robbery. The robbery is defined u/Sec. 390 IPC and FIR No.52/2012 Page 20 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
essential ingredients of which were laid down in citation titled Venu @ Venugopal & Ors. v. State of Karnataka (2008) 3 SCC 94=AIR 2008 SC 1199 as under:
(i) Accused committed theft
(ii) Accused voluntarily caused or attempted to cause
(a) death, hurt or wrongful restraint
(b) Fear of instant death, hurt or wrongful restraint.
(iii) He did either act for the end
(a) to commit theft
(b) while committing theft
(c) In carrying away or in the attempt to carry away property obtained by theft.
The relevant para 8 to 13 are reproduced hereasunder:
8. Section 392 IPC provides for punishment for robbery. The essential ingredients are as follows:
1. Accused committed theft;
2. Accused voluntarily caused or attempted to cause.
(i) death, hurt or wrongful restraint.
(ii) Fear of instant death, hurt or wrongful restraint.
3. He did either act for the end.
(i) to commit theft.
(ii) While committing theft.
(iii) In carrying away or in the attempt to carry away property obtained by theft.
FIR No.52/2012 Page 21 of 84U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
9. It is to be noted that the Section 392 provides punishment for robbery. It is punishment for the offence defined in Section 390. Punishment is higher if it is committed on a highway and between sunset and sunrise.
Section 390 which defines "robbery" reads as follows:
390. Robbery.- In all robbery there is either theft or extortion.
When theft is robbery.-Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by theft, the offender, for the end, voluntarily causes or attempts to cause to any person death or hurt wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.-Extortion is "robbery" if the offender at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then, and there to deliver up the thing extorted.
Explanation.-The offender is said to be present if he is sufficiently near put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint."
10. The provision defines robbery which is theft or extortion when caused with violence of death, hurt or wrongful restraint. When there is no theft committed, then as a natural corollary there cannot be robbery.
FIR No.52/2012 Page 22 of 84U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
Robbery is only an aggravated form of offence of theft or extortion. Aggravation is in the use of violence of death, hurt or restraint. Violence must be in course of theft and not subsequently. It is not necessary that violence actually should be committed but even attempt to commit it is enough.
11. The authors of the Code observed as follows:
"In one single class of cases, theft and extortion are in practice confounded together so inextricably, that no judge, however, sagacious, could discriminate between them. This class of cases, therefore, has, in all systems of jurisprudence ... been treated as a perfectly distinct class ... we have, therefore, made robbery a separate crime.
There can be no case of robbery which does not fall within the definition either of theft or of extortion; but in a practice it will perpetually be a matter of doubt whether a particular act of robbery was a theft or an extortion. A large proportion of robberies will be half theft, half extortion. A seizes Z, threatens to murder him, unless he delivers all his property, and begins to pull off Z's ornaments. Z in terror begs that A will take all he has, and spare his life, assists in taking off his ornaments, and delivers them to A. Here, such ornaments as A took without Z's consent are taken by theft. Those which Z delivered up from fear of death are acquired by extortion. It is by no means improbable that Z's right arm bracelet may have been obtained by theft, and left-arm bracelet by extortion; that the rupees in Z's girdle may have been obtained by FIR No.52/2012 Page 23 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
theft, and those in his turban by extortion. Probably in nine-tenths of the robberies which are committed, something like this actually takes place, and it is probable that a few minutes later neither the robber nor the person robbed would be able to recollect in what proportions theft and extortion were mixed in the crime; nor is it at all necessary for the ends of justice that this should be ascertained. For though, in general, the consent of a sufferer is a circumstance which very materially modifies the character of the offence, and which ought, therefore, to be made known to the Courts, yet the consent which a person gives to the taking of this property by a ruffian who holds a pistol to his breast is a circumstance altogether immaterial".
12. The words "for that end" in Section 390 clearly mean that the hurt caused must be with the object of facilitating the committing of the theft or must be caused while the offender is committing theft or is carrying away or is attempting to carry away property obtained by the theft.
13. As the provision itself provides when the highway robbery is committed, deterrent punishment is called for.
Xxxxxxxxxx
6. The prosecution must prove the first ingredient that the accused had committed theft and for this purpose prosecution must prove the offence of robbery. After satisfaction of Section 392 IPC the prosecution has to prove further that in this process of committing robbery the accused has voluntarily caused hurt FIR No.52/2012 Page 24 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
to bring the offence within the definition of Section 394 of IPC. The accused is charged under Section 394 IPC as he is charged with the offence of robbery of Rs.50,000/-, 6 golden rings, 1 diamond ring, wrist watch of make Diesel, silver coins, 4 mobile phones bearing No.9717339319, 9911047157, 9811771574 & 8750794450 and this robbery was committed on the person of Ms. Rashmi Arora/ PW-1. In furtherance of the robbery the accused has committed simple injury on PW-1 and thereby committed offence under Section 394 IPC. With such charge the prosecution must establish the fact of recovery of such articles from the possession of PW-1. PW-1 Ms. Rashmi Arora had obtained a ring, cash amount for a sum of Rs.12,000/-, coins and 3 mobile phones vide superdarinama Ex.PW1/L. The Panchnama of the same is Ex.PW1/M bearing signature of PW-1 at point A. The cash memo which the PW-1 had handed over to IO during investigation of mobile phone and jewellery are Ex.PW1/N, Ex.PW1/O, Ex.PW1/P & Ex.PW1/Q. The cross examination of PW-1 was deferred on 02.07.2014 for 25.08.2014 and it was further deferred to bring the case property which was brought by PW-1 on 08.12.2014.
7. PW-1 has produced and proved articles as under:
(a) Ex.P-6 which is one mobile phone of make Galaxy Sumsang Black Colour having IMEI No.358401-04-247777-6 which FIR No.52/2012 Page 25 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
was produced without screen;
(b) One diamond ring studded with green and red ruby stones is Ex.P-7;
(c) One mobile phone of make blackberry of black colour having IMEI No.357175043959260 as Ex.P-8
(d) Another mobile phone of make Nokia having white red colour with IMEI No.354307-0-8601826 as Ex.P-9.
(e) The 7 photographs taken at police station while releasing the articles on superdari are Ex.P-10/A-1 to Ex.P-10/A-7.
8. During cross examination dated 23.09.2016, PW-1 had deposed that she cannot tell exact denominations of currency notes which were robbed from her house. It is deposed that accused Manoj had been shown to her in the police station and she had identified him as one of the culprits. He was not muffled face. She came to know about the name of the accused in the PS and she had seen the accused Manoj at the time of robbery. Prior to that accused Manoj did not visit her home. PW-1 in examination in chief and PW-6 also in examination in chief had deposed that Rs.50,000/- in cash was stolen. PW-6 had acquired knowledge of this theft from PW-7. PW-8 who is cousin brother of Sh. Pawan Arora. PW-6 Pawan Arora is husband of PW-1. PW-8 Sh. Goverdhan Lal had deposed that FIR No.52/2012 Page 26 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
pullanda with the seal of CM was found containing Rs.4000/- in cash and pullanda with the seal of SK was found containing Rs.8000/- approximately in cash, 1 diamond ring and 1 Samsung mobile phone with two mobile phones one of which was of Blackberry company and another of other company with 250 coins approximately. PW-9 had deposed that he had obtained a Sim Card of company Idea on his Voter ID Card and the phone No.8750974445 was in his name. This mobile phone was given by him to his sister. It is noted that in the charge dated 18.08.2012 this mobile number is not mentioned and charge was given to the accused on a different mobile number. PW-11 had confirmed the said mobile number is in the name of PW-9 and who had deposed that they maintain record of CDR only for one year and therefore he had not produced the CDR dated 05.07.2014. PW-11 is working as Nodal Officer in Idea Cellular Ltd. since 2005. PW-11 cannot depose that on which date mobile number 8750974445 and mobile number 8750974447 were activated.
9. PW-16 had proved issuance of mobile number 8860864155 on the basis of voter ID Card Ex.PW16/A & Ex.PW16/B. PW-16 had proved issuance of mobile number 9711536810 on the basis of voter ID Card Ex.PW16/E & Ex.PW16/F. PW-16 had proved issuance of mobile number FIR No.52/2012 Page 27 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
8860859195 on the basis of voter ID Card Ex.PW16/I & Ex.PW16/J. PW-16 had proved issuance of mobile number 9811771574 on the basis of voter ID Card Ex.PW16/M & Ex.PW16/N.
10. PW-20 HC Narender had deposed that on 15.04.2012 he alongwith SI Satender and Ct. Kuldeep went to Madipur Village on the basis of mobile surveillance and on local inquiry went to the third floor of House No.WZ-271 where accused Amodh @ Pramod / juvenile was apprehended and one mobile phone of make Nokia was recovered from the pocket of his shirt which was allegedly used by him at the time of incident for talking with his associates. The Seizure Memo is Ex.PW20/A. However the location details of the accused are not proved on record in respect to said mobile number by PW-9 or PW-11 and therefore it cannot be said that the accused had used this phone from such location. It is further deposed by PW-20 that on search of accused Manoj one mobile phone of make G Five was recovered from his right pocket which was used by accused for talking with his associates. However no record of such talking are specifically proved on record.
11. At brown colour bag containing Rs.4000/- was recovered from accused Amodh under a wooden cot, with one mobile phone of Samsung Galaxy and one diamond ring having green FIR No.52/2012 Page 28 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
and red rubies.
12. It is deposed by PW-20 that accused Manoj got recovered one polythene bag containing Rs.8000/-, one mobile phone of make blackberry, one mobile phone of make Nokia of white and red colour, coins amounting to Rs.284/- and the said property was seized by memo Ex.PW20/J. The pointing out memo of both the accused is Ex.PW20/K. Witness had correctly identified the phone of make Nokia as Ex.PX-1 allegedly recovered from accused Amodh and one mobile phone of make G Five is correctly identified as Ex.PX-2 allegedly recovered from accused Manoj. However in cross examination PW-20 had deposed that he had joined investigation after 15.04.2012. He is not aware about surveillance of mobile phone and he is not aware about the distance between the PS and Madipur. He cannot tell how many stories the house of accused was constructed nor he can tell the area of the said house. It is deposed by PW-20 that it took them to reach Madipur about 30 to 45 minutes whereas it is deposed that they had left the PS around 7:00-7:30 PM and reached at the house of the accused at 9:45 PM. Hence more than 2 hours were taken in reaching the house of accused though it is claimed that the time taken is about 30-45 minutes. Hence contradictory statements were made by PW-20. He cannot describe properly the area or FIR No.52/2012 Page 29 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
number of the stories of house of the accused which creates doubt about the presence of PW-20 with the raiding team. PW- 20 does not remember the denomination of the currency notes recovered. He cannot tell the denomination of coins recovered from the possession of accused. Hence the presence of PW-20 in the alleged recovery from the house of accused at Madipur is doubtful.
13. PW-26 Sh. Surinder Kumar, Nodal Officer, Bharti Airtel Ltd. had deposed that the mobile phone No. 9971337398 was alloted in the name of Sh. Santosh Kumar S/o Sh. Ram Murat. PW-26 had deposed that copy of driving licence was taken at the time of issuance of mobile number which is Mark X1 and copy of CAF is Ex.PW26/A. The CDR is Ex.PW26/B from 01.04.2012 to 15.04.2012. PW-26 had also got record of mobile phone No.9717339319 and the number was alloted in the name of Sh. Pawan S/o Sh. Ram Lal Arora. Copy of CAF is Ex.PW26/C and the copy of passport is Mark X2 and the CDR of the mobile phone is Ex.PW26/D for the period from 01.04.2012 to 15.04.2012. Similarly PW-26 had got location chart of mobile No.9971337398 and another mobile no.9717339319. PW-26 does not have personal knowledge. The prosecution is required to prove the ownership of the said mobiles. When these mobiles except one are not the same FIR No.52/2012 Page 30 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
numbers issued either in the name of the complainant or her family members then it cannot be said that these are stolen mobiles. The incident is dated 12.04.2012 and the PW-27 SI Naresh had deposed that he alongwith SI Surinder and other police staff went to the third floor of house No.WZ-271, Madipur Village. They had went to the said house on the basis of mobile phone surveillance. Accused Amodh and accused Manoj were apprehended at the spot and one mobile phone of make Nokia was recovered from the pocket of his shirt. It is difficult to believe that when the incident is dated 12.04.2012 then accused Amodh @ Pramod is keeping the stolen mobile phone in his front pocket about 3 days after 12.4.2012. Hence the recovery of mobile phone from the accused Amodh @ Pramod is doubtful keeping in view the citation referred below. Hon'ble Supreme Court of India in case titled Bijender @ Mandar vs State Of Haryana on 8 November, 2021 CRIMINAL APPEAL NO. 2438 OF 2010 has held as under:
16. We have implored ourselves with abounding pronouncements of this Court on this point. It may be true that at times the Court can convict an accused exclusively on the basis of his disclosure statement and the resultant recovery of inculpatory material. However, in order to sustain the guilt of such accused, the recovery should be unimpeachable and not be shrouded with elements of doubt. We may hasten to add that circumstances such as
(i) the period of interval between the malfeasance and the FIR No.52/2012 Page 31 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
disclosure;
(ii) commonality of the recovered object and its availability in the market;
(iii) nature of the object and its relevance to the crime;
(iv) ease of transferability of the object;
(v) the testimony and trustworthiness of the attesting witness before the Court and/or other like factors, are weighty considerations that aid in gauging the intrinsic evidentiary value and credibility of the recovery. (See: Tulsiram Kanu vs. The State2; Pancho vs. State of Haryana3; State of Rajasthan vs. Talevar & Anr 4 and Bharama Parasram Kudhachkar vs. State of Karnataka5)
17. Incontrovertibly, where the prosecution fails to inspire confidence in the manner and/or contents of the recovery with regard to its nexus to the alleged offence, the Court ought to stretch the benefit of doubt to the accused. Its nearly three centuries old cardinal principle of criminal jurisprudence that "it is better that ten guilty persons escape, than that one innocent suffer". The doctrine of extending benefit of doubt to an accused, notwithstanding the proof of a strong suspicion, holds its fort on the premise that "the acquittal of a guilty person constitutes a miscarriage of justice just as much as the conviction of the innocent".
19. Unmindful of these age old parameters, we find that the Prosecution in the present case has miserably failed to bring home the guilt of the Appellant and Courts below have been unwittingly swayed by irrelevant considerations, such as the rise in the incidents of dacoity. In its desire to hold a heavy hand over such derelictions, the Trial Court and the High Court have hastened to shift the burden on the Appellant to elucidate how he be chanced to be in possession of the FIR No.52/2012 Page 32 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
incriminating articles, without primarily scrutinizing the credibility and admissibility of the recovery as well as its linkage to the misconduct. We say so for the following reasons:
Firstly, the High Court and the Trial Court failed to take into consideration that the testimony of ASI Rajinder Kumar (PW-
14) exhibited no substantial effort made by the police for conducting the search of the residence of the Appellant in the presence of local witnesses. The only independent witness to the recovery was Raldu (PW¬8) who was admittedly a companion of the Complainant.
Secondly, the Complainant (PW¬4) as well as Raldu (PW¬8), have unambiguously refuted that neither the passbook, nor the 'red cloth' was recovered from the possession of the Appellant, as claimed in his disclosure s wrapped tatement.
Thirdly, while the Complainant (PW¬4) negated his signatures on the recovery memo (EX. PD/2), on the other hand, Raldu (PW¬8) also neither enumerated the recovery memo (Ex. PD/2) in the catalogue of exhibited documents, nor did that he affirm to having his endorsement.
Fourthly, the recovered articles are common place objects such as money which can be easily transferred from one hand to another and the 'red cloth' with 'Kamla' embossed on it, as has been acceded by the Investigating Officer, Rajinder Kumar (PW¬14), can also be easily available in market.
Fifthly, the recovery took place nearly a month after the commission of the alleged offence. We find it incredulous, that the Appellant during the entire time period kept both the red cloth and the passbook in his custody, along with the money he allegedly robbed off the Complainant.
Sixthly and finally, there is no other evidence on record which FIR No.52/2012 Page 33 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
even remotely points towards the iniquity of the Appellant.
20. It appears to us that the Trial Court and the High Court have erroneously drawn adverse inference against the Appellant, in spite of the Prosecution having lamentably failed to adequately dispense with its burden of proof to depict culpability of the Appellant. As far as the view of the Trial Court and the High Court qua the alleged threat is concerned, we find it hard pressed to give credence to such allegations in the absence of any compelling evidence to substantiate the same. Although, the Prosecution has attempted to place reliance on the affidavit presented by the Complainant during the T.I.P. offered by the co accused Manjeet, we find that the said affidavit does not name the Appellant herein and pertains solely to Manjeet.
14. Further the prosecution has failed to show in deposition of its witness that what call from the said mobile phone was made by the accused and to whom with specific date and time and with location in absence of which the accused could not be connected with the recovery of the said mobile phone. Similarly recovery of Samsung Galaxy mobile phone from accused Amodh could not be associated to him as the recovery is shown from under a wooden cot lying in the room. The ownership/ exclusive possession of this room / premises must be shown with the accused which the prosecution has not proved to fasten the liability of such recovery of Samsung Galaxy mobile phone, diamond ring and red rubies in the said room. The currency notes of Rs.4000/- have no specific mark of identification from FIR No.52/2012 Page 34 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
which it could be said that they belong to the complainant PW-1 only. The currency notes are commonly available in the market and without any proper identification no liability on the accused for their explanation can be fixed. Similarly the recovery of articles from accused Manoj under a mattress lying in his room in a polythene printed bag containing Rs.8000/-, 1 mobile phone of make Blackberry and 1 mobile phone of make Nokia of white & red colour and coins cannot be specifically fastened on accused Manoj in the absence of proof of exclusive possession of such premises/ room with accused Manoj. The phone call if made from such mobile phone is also not proved on record by specifically pointing out that what particular number of SIM the mobile phone had contained and it has connected with which particular SIM on specific date, month and time with location. In absence of which it cannot be said that any call from the said mobile phone was made by the accused to fasten the liability on the accused. Money is commonly available article. A sum of Rs.8000/- was recovered from accused Manoj. The amount of recovered money from accused Amodh and accused Manoj is not such a big amount that they could not be available with the accused under the social strata in which they were living. Hence there is no evidence on the basis of which it could be said that the articles FIR No.52/2012 Page 35 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
recovered were in exclusive possession of accused Manoj or accused Amodh or that these articles were at all belonging to the complainant PW-1. The possession of particular mobile number does not per se prove that these numbers were used in the recovered Samsung, Blackberry or Nokia mobile phone. What the prosecution in fact has brought on record is disconnected evidence of use of SIM on the one hand and recovery of mobile phone on the other hand. Until the above two evidence are connected in some manner then it cannot be said that these SIM with allotted mobile number was used on the recovered mobile phone. Hence the use of such mobile phone by the accused is also not proved on record.
15. Another fact to be noted is that PW-20 HC Narender who was part of the raiding team with SI Satender and Ct. Kuldeep for going towards Madipur Village had deposed that they left the PS for Madipur Village at about 7:00- 7:30 PM whereas SI Naresh Kumar/ PW-27 had deposed that they left for Madipur Village from Karol Bagh at about 8:30 PM. It took PW-27 to reach Madipur in 30-45 minutes. In cross examination dated 14.01.2016 it is deposed by PW-27 that he had reached at Madipur Village at about 8:30 PM whereas in cross examination dated 13.01.2016 it is deposed by PW-27 that he started for Maidpur Village from Karol Bagh at about 8:30 PM FIR No.52/2012 Page 36 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
and it took him 30-45 minutes to reach at Madipur Village. Hence it has become doubtful if PW-27 was at all part of the raiding team or the raid was conducted in the manner as claimed by prosecution witness.
16. The then learned MM (NI Act) Sh. Chander Mohan /PW-
28 had conducted judicial TIP of accused Manoj Kumar. The accused Manoj Kumar refused to participate in the TIP whose statement was recorded as Ex.PW28/A-2 in TIP proceedings Ex.PW28/B. Cross examination of PW-28 is nil and opportunity was given. The TIP proceedings on record are seen and the reason mentioned by accused Manoj Kumar for not participating in the TIP proceedings is that the complainant and some other people had seen him. However it is not disclosed by the accused where the complainant and other person had seen him and at what time. Warning was also given to the accused at the time of recording of TIP that an adverse inference can be drawn against him. However in the examination of chief of deposition of PW-1 at page no.4 it is deposed that on 18.04.2012 she went at PS Karol Bagh with her two children to inquire about the progress of the case and she had found her servant, accused Pramod and accused Manoj in the custody of police officials and she had told the IO at that time about the accused Manoj and accused Pramod who had committed the FIR No.52/2012 Page 37 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
crime. The accused Manoj Kumar had refused TIP on 18.04.2012 before learned MM. However it is not clear whether on 18.04.2012 PW-1 had went to police station before the conducting of the TIP or after the conducting of TIP by learned MM in the absence of which there is possibility that the accused was shown before hand to the witnesses at the police station and thereby adverse inference cannot be drawn against accused Manoj for his refusal on the ground of for showing him at the police station by the IO to the PW-1 and other public witness.
17. The TIP of diamond ring was conducted and the statement of witness PW-1 was recorded vide Ex.PW1/K. PW-1 had identified the diamond ring at sixth place from left side and third place from right side which belongs to her. Hence PW-1 had correctly identified the diamond ring. The diamond ring alongwith 3 mobile phone were released on superdari to PW-1 vide Ex.PW1/L. The punchnama is Ex.PW1/M. Ex.PW1/P mentions diamond jewellery. It also mentions red and green stones and also gold at one place. PW-1 had deposed in her examination in chief dated 02.07.2014 at page 2 that she found missing 6 gold rings, 1 diamond ring affixed with green panna. She does not mention the diamond ring studded with red and green stone. However she mentions that it is studded with green stone/ green panna. Hence there is difference between red and FIR No.52/2012 Page 38 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
green stone on one hand and green panna/ stone alone on other hand even though the PW-1 had identified the diamond ring correctly then also there is doubt that this is the same diamond ring which is stolen from her house. PW-1 mentions that there were 6 gold rings. In her deposition she had not mentioned that her diamond ring was made of gold.
18. PW-2 had deposed that on 12.04.2012 he had returned home alongwith brother Arjun from school around 3:30 PM and found that door of the house was locked. His brother Arjun/PW- 3 had extra key of the main door who had opened the lock of the main door and then they had entered into the house. Same is the deposition of PW-3. The accused Pramod with 2 other person came out of the house and fled away with bags and some articles. PW-1 had deposed that on 12.04.2012 around 3:00 PM accused Pramod came to her house who had informed that his 2 friends are sitting in the park in front of the house and he had to provide water to those 2 person. PW-1 had allowed providing of water to the said 2 person and thereafter started watching TV in her bedroom. About 5-10 minutes thereafter accused Pramod alongwith 2 boys entered her house. Hence it has come on record that the accused person must have entered the house of PW-1 between 3:00 PM to 3:30 PM.
19. PW-6 Sh. Pawan Arora is the husband of PW-1 who had FIR No.52/2012 Page 39 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
left the house on 12.04.2012 around 11:30 AM for his work. Before leaving for work he had breakfast in the house prepared by their servant who is accused Pramod. He was feeling drowsiness and headache in his office. Around 2:00 -2:30 PM he had received call from Sh. Rajiv Taluja his brother in law in that their servant Pramod alongwith his associates had committed robbery in the house after tying hand and wrist of his wife. He was not feeling well and his brother in law had taken him to B. L. Kapoor Hospital, Pusa Road, Karol Bagh, Delhi where he remained admitted for about 48 hours. Hence PW-6 had deposed contradictorily to the deposition of PW-1 that the alleged robbery had occurred between 2:00 - 2:30 PM and not between 3:10 -3:30 PM.
20. PW-7 had deposed that PW-6 is his brother in law and he had received information of robbery taken place at the house of PW-1 / his sister on 12.04.2012 on receipt of which he had reached at the house of his sister and found that his brother in law / PW-6 was not feeling well and then he had taken him to hospital. It is deposed by PW-7 in his cross examination that around 2:00 PM on 12.04.2012 when he was present in his shop then he had received an information about the incident of robbery. This information was received by him from his mother. The distance between his shop and house of PW-1 is about 2 FIR No.52/2012 Page 40 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
KM. It is deposed that PW-6 reached at the house after PW-7 had already reached there. The MLC of Sh. Pawan Arora is Ex.PW25/A which mentions the date of arrival as 12.04.2012 at 9:45 PM. It is deposed by PW-7 in cross examination that within 10 minutes of his receiving the information from his mother he had reached the house of PW-1 which is at the distance of 2 KM from his shop. He had reached within 10 minutes. He had reached at B. L. Kapoor Hospital at 6:00 PM - 7:00 PM alongwith his brother. The mother of PW-7 had not been examined in the present matter to depose that how she came to know about the incident of robbery before 2:00 PM and why she did not inform this matter immediately to the police. When as per deposition of PW-1 the incident had occurred after 3:10 PM then the PW-6 and PW-7 have contradicted PW-1 to such time of the incident of robbery. PW-6 and PW-7 were not declared hostile by the prosecution.
21. PW-1 had proved invoice of Samsung Galaxy S11 Mobile Phone vide Ex.PW1/N. The seizure memo of the same is Ex.PW20/A. The invoice of Blackberry Mobile Phone is Ex.PW1/O. The invoice of diamond jewellery is Ex.PW1/P. The invoice of Nokia Phone is Ex.PW1/Q. The photographs are Ex.P10/A-1 to Ex.P10/A-7. Accordingly, PW-1 had proved that she had possession of the abovementioned mobile phone and FIR No.52/2012 Page 41 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
jewellery with her and that such goods belonged to her. Nor there is any dispute in the corss examination of PW-1 that such articles does not belong to her and since invoice are in her possession then it can be safely believed that PW-1 is the rightful owner of such goods.
22. However whether the said goods are recovered from the possession of accused Amodh @ Pramod and accused Manoj is another aspect. The IO/ PW-30 SI Satender Kumar on the basis of local intelligence had reached at village Madipur and he came to know that accused Amodh @ Pramod is residing on third floor of property No.WZ-271, Madipur Village, New Delhi. It is further deposed by PW-30 that accused Amodh @ Pramod was residing with accused Manoj Kumar Shah. They were residing at the third floor where both the accused were present who were apprehended by PW-30 and his team. On search of accused Pramod @ Amodh the mobile phone of make Nokia, another mobile phone of China make which is G Five was recovered from his possession. Hence the police had reached at the spot on the basis of local intelligence and not on the basis of disclosure made by the accused person and therefore the recovery does not come within purview of Section 27 of Indian Evidence Act. The recovery from accused Pramod @ Amodh was made from under the bed and from the accused FIR No.52/2012 Page 42 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
Manoj Kumar Shah it was recovered under the mattress of the bed. The recovery was effected from the same house. PW-27 who was part of the raiding team had deposed in cross examination dated 14.01.2016 that he did not meet the landlord of the house at that time. Hence the ownership of the said house is not investigated nor it is proved on record that to which person the said house from where the recovery was effected was let out. Before claiming that the recovery was effected from the accused person it is incumbent on the prosecution to prove that the accused had mens rea and they had conscious possession. It was held in AIR 1972 SC 1899 (1902) that when the house is in joint possession of 2 persons and when the gun was so concealed that it was not visible to the naked eye then the prosecution was bound to establish facts from which it would be concluded that the person in the room was aware of existence of fire arm. It was held in 1953 Criminal Law Journal 1330 (DB) that even knowledge of the fact that the article is lying the house is not sufficient to sustain a conviction unless the animus or the will to possess or to control is established against the person or the persons sought to the made liable. It was held in AIR 1927 Lahore 726 that when it is not shown that the accused had exclusive possession of the room in which arms are found or that arms were placed on his person or belongs to him FIR No.52/2012 Page 43 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
or that he knew they were there then the accused cannot be convicted of the offence. (All number of citations are taken from the AIR Manual Civil & Criminal 6 th Edition Vol. 2 by Manohar & Chitaley)
23. The prosecution in the present case was failed to show possession of the house with the accused person. On the basis of disclosure statement alone the accused could not be convicted in view of non-applicablity of Section 27 of the Indian Evidence Act in this case. Mens rea is not established by the prosecution against the accused and hence the recovery shown against the accused cannot be relied upon.
24. It is deposed by PW-30 that on 20.06.2012 the complainant / PW-1 had told him that on their visit to police station Karol Bagh on 18.04.2012 they had visited to see the progress to their case then at that time they had seen one of the assailants in the police lock-up. PW-1 in cross examination dated 23.09.2016 had deposed that she had seen accused Manoj on 18.04.2012 at PS Karol Bagh in the noon time. Hence the benefit of refusal in conducting of TIP by the accused must go to the accused as the accused was already shown to the witness at the noon time. No adverse inference can be drawn against the accused Manoj for refusal to get the TIP conducted. It is admitted in cross examination by PW-20 that the 284 coins FIR No.52/2012 Page 44 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
allegedly recovered from the possession of the accused are normally available with any person. There is no special identification of currency notes and it is admitted as correct by PW-30 that no judicial TIP of currency notes was conducted.
25. PW-30 had admitted as correct that the SIM used in mobile make G Five bearing No.9199410929 was issued in the name of Ms. Laxmi Devi. PW-30 had not made any investigation in reference to the ownership of the said mobile in the name of Ms. Laxmi Devi. The accused had suggested that this mobile phone was implanted on him and it was not recovered from him. PW-30 had admitted in cross examination as correct that he had not collected the CAF and CDR of the complainant and their family members to connect the user of Nokia and Blackberry phone to the complainant. It is admitted that no public person had joined at the time of recovery/ seizure from the accused persons. Hence the prosecution has failed to establish the connection of said mobile phone in the name of Ms. Laxmi Devi with the accused. The recovery itself has become doubtful in view of the absence of possession of the premises with the accused person and that when the recovery is not effected from the person of the accused. Hence the prosecution has failed to prove that the accused person have committed theft.
FIR No.52/2012 Page 45 of 84U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
26. The next ingredient that the prosecution has to prove that the accused had caused hurt or wrongful restraint or attempted to cause the same. To establish the above ingredient time of commission of offence is of great importance. PW-1 had deposed that it was between 3:10 PM to 3:30 PM when the alleged offence was committed by the accused persons. The accused Pramod used to stay round the clock at the house of PW-1 to do the work of domestic servant. The suggestion is denied that PW-1 did not pay any salary to Pramod. It is deposed by PW-1 in cross examination dated 23.09.2016 that she had to go to the house of her mother in the morning hours as there was lunch fixed for her. Her husband used to leave the house for business at Ghaziabad between 12:30PM to 1:00 PM and used to return home by 7:00 PM to 7:00 PM. On that day her husband had left for work after taking lunch. PW-6 had deposed that he had left his house at 11:30 AM. By that time PW-6 had already taken his breakfast. Hence he had left 1 hour before to his usual routine time for visiting office from 12:30 PM onwards. It is deposed by PW-6 that around 2/2:30 PM he had received a call from his brother in law Sh. Rajeev Taluja/PW-7 that accused Pramod with his associates had committed robbery in the house. PW-7 had received the information of robbery and reached at the house of his sister. It FIR No.52/2012 Page 46 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
is deposed in cross examination by PW-7 that around 2:00 PM he had received an information about robbery at the house of his sister/ PW-1 from his mother by way of telephone. Within 10 minutes of this information he had reached at the house of his sister. Hence the information of robbery was already available with the mother of PW-1 and PW-7 before 2:00 PM that robbery was committed at the house of PW-1. However PW-1 had deposed that robbery was committed between 3:10 PM to 3:30 PM. This creates doubts in the case of the prosecution in that if any robbery at all was committed between 3:10 PM to 3:30 PM at the house of PW-1. Another aspect to the matter is that PW-1 had lunch on that day with her mother. Her husband had already left for his office. She had no reason for not going to her mother on that day for lunch. It creates doubt in the case of the prosecution that PW-1 had some other reason which is not disclosed before the Trial Court for not going for lunch to her mother on that day. Other then this there is no explanation from the prosecution that how mother of PW- 7 or PW-1 had got the information of robbery at 2:00 PM which is the time when no robbery was committed in the house of PW-
1. PW-7 had claimed that within 10 minutes to 2:00 PM he had reached at the house of PW-1 which means he must have reached the house by 2:10 PM and in such event there is no FIR No.52/2012 Page 47 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
explanation that when the robbery was already committed before 2:00 PM then how it was going to be committed again between 3:10 PM to 3:30 PM.
27. Another contradiction that is to be noted is that PW-2 had deposed that his brother Arjun / PW-3 had extra key of the main door. They had opened the lock of the main door and entered the house. In the meanwhile the accused Pramod @ Amodh alongwith 2 other persons came out of the house and fled away with bags and some articles. It shows that the accused had started running from the same door from which PW-2 had entered which is the main door. In cross examination the PW-2 had deposed that first they had seen the accused inside the house in the lobby on which accused started running. The accused had ran away from the back door of their house. The suggestion is denied that the accused persons came out from the main door when they entered. In this way PW-2 had contradicted his own statement that when they opened the lock of the main door and entered the house then the accused persons came out of the house and fled away which gives the meaning that he accused persons fled away from the main door. Other then this PW-3 had deposed that then they opened the lock of the main door and entered into the house then accused Pramod with 2 other persons came out of the house and fled away. In FIR No.52/2012 Page 48 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
cross examination PW-3 had deposed that accused Pramod gently passed through the main door and they did not raise alarm and they let them to leave the house. With such deposition, PW-3 had contradicted PW-2 the manner in which the accused had ran away whether from front door or back door. Both PW-2 and PW-3 were together when they returned home from school and entered the house from the main gate/ front door. PW-2 could not tell the monthly salary paid to their domestic servant/ accused Pramod. Hence there is doubt in the case of the prosecution whether the accused had ran away at all from the house in question if at all from the front door or the back door. The above witnesses are not declared hostile by the prosecution. Hence it is held that prosecution has failed to prove that accused persons have committed theft.
28. It was held in citation 1982 Rajasthan CrC 90 that when the witnesses were deposing against the case of the prosecution and the prosecution has not taken any steps to declare them hostile and to show that their version in the Court was either an improvement or contradictory to the police version then the evidence of such witnesses could not be ignored. The recovery has become doubtful and benefit of which has to go to the accused which was so held in that case against accused from whom cartridges were allegedly FIR No.52/2012 Page 49 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
recovered.
29. Now it has to be seen that whether in such process the accused had caused hurt or wrongful restraint to PW-1 for that end for carrying away property obtained by theft. It is already observed above that there is contradiction in the time of commission of robbery between PW-1 on the one hand and PW- 6 & PW-7 on the other hand. The MLC of PW-1 is Ex.PW4/A and she was found fit for statement on the same day. The nature of injury are reportedly simple and the kind of weapon used was blunt. PW-5 had deposed that there were 2 injuries on PW-1. One was swelling on bilateral lips and the another is lacerated wound of 1x0.5 cm on the right side of floor of mouth. It is deposed by PW-1 that tall boy was carrying nylon rope had threatened her and he had also gave fist blow on her mouth and also gave beating to her. The tall boy also tied her hands with the nylon rope. Hence as per deposition of PW-1 the hurt was allegedly caused by the tall boy only and the wrongful restraint was by all the 3 accused together. The PW-1 in her examination in chief dated 05.03.2014 had deposed that the third boy other than accused Pramod @ Amodh and other then the tall boy had pushed one handkerchief inside her mouth and also covered her face with a shirt and all the three boys started threatening her. However, in further examination in chief dated 02.07.2014 at FIR No.52/2012 Page 50 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
page 2 the PW-1 had deposed that accused Manoj Kumar Shah had pushed handkerchief inside her mouth and tied her hands with nylon rope at the time of incident. The accused Surinder is a Proclaimed Offender in this matter. In examination in chief dated 05.03.2014 it was deposed by PW-1 that the tall boy had tied both her hands with nylon rope whereas in examination in chief dated 02.07.2014 at page 2 it is deposed by PW-1 that accused Manoj Kumar Shah had tied her hands with nylon rope. Accused Manoj Kumar Shah is not the tall boy and is the third boy as per examination in chief dated 05.03.2014. Hence doubt is created by PW-1 as to the person who had tied her hands whether it is Manoj Kumar Shah or the tall boy / Surinder who is already a Proclaimed Offender in this matter. Hence the doubt is also created regarding the person who had given beatings/ given punches to PW-1 during the alleged incident of robbery. Hence there is absence of certainty regarding the person who had caused hurt on the PW-1/ complainant and therefore benefit of doubt of which must go to the accused. Hence it cannot be said that accused Manoj Kumar Shah had caused hurt to PW-1 during the aforesaid alleged incident of robbery as there is doubt that whether the said hurt was caused by accused Manoj Kumar Shah or accused Surinder who is PO in view of the settled law that the accused cannot be convicted on the basis of FIR No.52/2012 Page 51 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
constructive liability and only the offender who causes hurt can be punished. The word offender only envisages the individual liability and not any constructive liability under Section 392 IPC read with Section 394 of IPC. Only under Section 391 IPC and Section 396 IPC constructive liability arises. In view of the above discussion it is held that the prosecution has failed to prove the offence against the accused Manoj Kumar Shah under Section 392/394 IPC and hence the accused stands acquitted of the above offences.
30. The accused was further charged under Section 411 IPC.
The necessary ingredients of which are detailed in the citation titled as Shiv Kumar vs. The State of Madhya Pradesh Criminal Appeal No.153 of 2022.
13. Section 411 IPC:
"411. Dishonestly receiving stolen property.- Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
The penal Section extracted above can be broken down into four segments namely: Whoever, I. Dishonestly; II. Receives or retains any stolen property; III. Knowing; or IV. Having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
14. "Dishonestly" is defined under Section 24 of the IPC as, FIR No.52/2012 Page 52 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
"Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly". The key ingredient for a crime is, of course, Mens Rea. This was nicely explained by Justice K. Subba Rao in the case of Dr. Vimla v. Delhi Administration4 in the following paragraphs: -
"9A. A Full Bench of the Madras High Court, in Kotamraju Venkatraadu v. Emperor [(1905)ILR 28 Mad 90, 96, 97] had to consider the case of a person obtaining admission to the matriculation examination of the Madras University as a private candidate producing to the Registrar a certificate purporting to have been signed by the headmaster of a recognized High School that he was of good character and had attained his 20th year. It was found in that case that the candidate had fabricated the signature of the headmaster. The court held that the accused was guilty of forgery. White, C.J., observed:
"Intending to defraud means, of course, something more than deceiving." He illustrated this by the following example: "A tells B a lie and B believes him. B is deceived but it does not follow that A intended to defraud B. But, as it seams to me, if A tells B a lie intending that B should do something which A conceives to be to his own benefit or advantage, and which, if done, would be to the loss or detriment of B, A intends to defraud B." The learned Chief Justice indicated his line of thought, which has some bearing on the question now raised, by the following observations:
"I may observe, however, in this connection that by Section 24 of the Code person does a thing dishonestly who does it with the intention of causing wrongful gain or wrongful loss. It is not necessary that there should be an intention to cause both. On the analogy of this definition, it might be said that either an intention to secure a benefit or advantage on the one hand, or to cause loss or detriment on the other, by means of deceit is an intent to defraud."
But, he found in that case that both the elements were present. Benson, J. pointed out at p. 114:
"I am of opinion that the act was fraudulent not merely by reason of the advantage which the accused intended to secure for himself by means of his deceit, but also by reason of the injury which must FIR No.52/2012 Page 53 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
necessarily result to the University, and through it to the public from such acts if unrepressed. The University is injured, if through the evasion of its bye-laws, it is induced to declare that certain persons have fulfilled the conditions prescribed for Matriculation and are entitled to the benefits of Matriculation, when in fact, they have not fulfilled those conditions for the value of its examinations is depreciated in the eyes of the public if it is found that the certificate of the University that they have passed its examinations is no longer a guarantee that they have in truth fulfilled the conditions on which alone the University professes to certify them as passed, and to admit them to the benefits of Matriculation."
Boddam, J., agreed with the learned Chief Justice and Benson, J. This decision accepts the principle laid down by Stephen, namely, that the intention to defraud is made up of two elements, first an intention to deceive and second the intention to expose some person either to actual injury or risk of possible injury; but the learned Judges were also inclined to hold on the analogy of the definition of "dishonestly" in Section 24 of the Code that intention to secure a benefit or advantage to the deceiver satisfies the second condition."
15. To establish that a person is dealing with stolen property, the "believe" factor of the person is of stellar import. For successful prosecution, it is not enough to prove that the accused was either negligent or that he had a cause to think that the property was stolen, or that he failed to make enough inquiries to comprehend the nature of the goods procured by him. The initial possession of the goods in question may not be illegal but retaining those with the knowledge that it was stolen property, makes it culpable.
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21. In Trimbak vs. State of Madhya Pradesh5, this Court discussed the essential ingredients for conviction under Section 411 of the IPC. Justice Mehr Chand Mahajan, in his erudite opinion rightly observed that in order to bring home the guilt under Section 411 IPC, the prosecution must prove, "5. (1) that the stolen property was in the possession of the accused, (2) that some person other than the accused had possession of the FIR No.52/2012 Page 54 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
property before the accused got possession of it, and (3) that the accused had knowledge that the property was stolen property...."
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23. That apart, the disclosure statement of one accused cannot be accepted as a proof of the appellant having knowledge of utensils being stolen goods. The prosecution has also failed to establish any basis for the appellant to believe that the utensils seized from him were stolen articles. The factum of selling utensils at a lower price cannot, by itself, lead to the conclusion that the appellant was aware of the theft of those articles. The essential ingredient of mens Rea is clearly not established for the charge under Section 411 of IPC. The Prosecution's evidence on this aspect, as they would speak of the character Gratiano in Merchant of Venice, can be appropriately described as, "you speak an infinite deal of nothing."6
24. In a case like this, where the fundamental evidence is not available and the law leans in appellant's favour, notwithstanding the concurrent finding, the Court has to exercise corrective jurisdiction as the circumstances justify. As such, taking a cue from Haryana State Industrial Development Corporation vs. Cork Manufacturing Co7., the exercise of extraordinary jurisdiction under Article 136 is found to be merited to do justice to the appellant who was held to be guilty, without the requisite evidence to establish his mens rea in the crime.
31. Hence the first ingredient the prosecution has to prove is that the accused had stolen property in his possession. The necessary finding in respect of above offence is already discussed under Section 392/394 IPC held above where it was held that the prosecution had failed to prove possession of stolen property with the accused person. The prosecution has also failed to prove that the accused person had knowledge that FIR No.52/2012 Page 55 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
such property was stolen property. However, the second ingredient is successfully proved by the prosecution that some other person other then the accused had possession of the property before the accused got possession of it. In deposition of PW-1 whereby the invoice Ex.PW1/N of Samsung Galaxy phone, invoice of Blackberry phone as Ex.PW1/O, invoice of diamond jewelery, red & green stone is proved as Ex.PW1/P and one invoice of Nokia phone vide Ex.PW1/Q. The seized articles are already released on superdari to PW-1. PW-8 had also identified the diamond ring, Samsung mobile phone and Blackberry phone. However, it is not sufficient to bring home the offence by to establish the ownership of above articles. All the ingredients laid down under Section 411 IPC has to be proved consecutively which are absent in the present case and therefore it cannot be conclusively said that the accused persons had committed offence under Section 411 IPC and therefore they are acquitted of the offence under Section 411 IPC.
32. To prove the charged offence it has to be seen first whether offence under Section 34 IPC is made out or not. The necessary ingredients under Section 34 IPC are laid down in the citation titled as Jai Bhagwan Vs. State of Haryana AIR 1999 SC 1083. It was held in case titled Jai Bhagwan Vs. State of Haryana AIR 1999 SC 1083 wherein it was held that to apply FIR No.52/2012 Page 56 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
Section 34, apart from the fact that there should be two or more accused, two factors must be established as follows:
(i) Common intention
(ii) Participation of accused in commission of any offence If common intention is proved but an overt act is attributed to the individual accused then Section 34 will be attracted as essentially it involves vicarious liability but a participation of accused in the crime is proved and common intention is absent then Section 34 cannot be invoked. It was held in case titled Ramashish Yadav Vs. State of Bihar 1999(8) SCC 555 that Section 34 requires a pre-arrange plan and it pre-supposes prior concert therefore, there must be prior meeting of mind. The prior meeting of mind can be developed at the spur of moment but there must be pre-
arrangement or pre-mediated concert. It was held in case titled Ram Bilas Singh v. State of Bihar AIR 1989 SC 1593 that in order to convict a person as vicariously liable under Section 34 or Section 149 of IPC then it is not necessary to prove that each and everyone of them had indulged in overt acts. The common intention can be formed in the course of occurrence which was so held in case titled Hariom Vs. State of U.P. (1993) 1 Crimes 254 (SC). It was held in case titled Santosh Desai vs. State of Goa (1997) 2 Crimes 666 (Bom) that when an offence is sought to be proved only on circumstantial evidence then the allegation of common intention under Section 34 normally cannot be established in absence of meeting of minds, the overt act of the accused, by their conduct, by using the weapons in their utterance of words.
33. It was further held by Hon'ble High Court of Delhi in case titled Neeraj Alias Nagar vs State (NCT of Delhi) on 14 November, 2019 in Crl. A. 88/2019 has held as under:
Common Intention
53. Learned counsel for the accused persons argued that the prosecution failed to prove that the accused persons shared a common intention to commit the alleged offence and hence, they FIR No.52/2012 Page 57 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
can't be held guilty for the offence punishable under Section 34 IPC.
54. Before delving into the merits of the case, we deem it appropriate to discuss the relevant provisions which are involved in the present case, Section 34 of the IPC reads as under:
"34. Acts done by several persons in furtherance of common intention.
--When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
55. To bring an offence within the ambit of Section 34 IPC, the following factors are necessary to be present there:
(1) The criminal act (consisting of a series of acts) should have been done, not by one person, but more than one person. (2) Doing of every such individual act cumulatively resulting in the commission of criminal offence should have been in furtherance of the common intention of all such persons.
56. Therefore, in order to constitute an offence under Section 34 IPC, the accused is to be fastened with liability on the strength of Section 34 IPC, that they should have done some act which has nexus with the offence. Such an act need not be very substantial. It is enough that the act is only for guarding the scene for facilitating the crime. The distinction between a "common intention" and a "similar intention" which is real and substantial is also not to be lost sight of. The common intention implies a prearranged plan or a plan developed on the spur of the moment. Such common intention which is developed on the spur of the moment is different from the similar intention actuated by a number of persons at the same time.
57. In other words, the act need not necessarily be overt, even if it is only a covert act, it is enough, provided such a covert act is proved to have been done by the co-accused in furtherance of the common intention. Even an omission can, in certain circumstances, amount to an act. So, the act mentioned in Section 34 IPC need not be an overt act, even an illegal omission to do a certain act in a FIR No.52/2012 Page 58 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
certain situation can amount to an act.
58. The Apex Court in the case of Rambilas Singh v. State of Bihar reported in AIR 1989 SC 1593 the Hon'ble Supreme Court held as under:
"It is true that in order to convict persons vicariously under S. 34 or S. 149 IPC, it is not necessary to prove that each and every one of them had indulged in overt acts. Even so, there must be material to show that the overt act or acts of one or more of the accused was or were done in furtherance of the common intention of all the accused or in prosecution of the common object of he members of the unlawful assembly."
(emphasis supplied)
59. The aforesaid judgment was followed by the Apex Court in the case of Suresh &anr v. State of UP reported in 2001 3 SCC 673. The germane portion of the judgment is extracted below:
"37. However, in view of the importance of the matter, insofar as the interpretation of Section 34 of the Indian Penal Code is concerned, we have chosen to express our views in the light of consistent legal approach on the subject throughout the period of judicial pronouncements. For the applicability of Section 34 to a co-accused, who is proved to have common intention, it is not the requirement of law that he should have actually done something to incur the criminal liability with the aid of this section. It is now well settled that no overt act is necessary to attract the applicability of Section 34 for a co-accused who is otherwise proved to be sharing common intention with the ultimate act done by any one of the accused sharing such intention.
38. Section 34 of the Indian Penal Code recognizes the principle of vicarious liability in criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. The section gives statutory recognition to the commonsense principle that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. There is FIR No.52/2012 Page 59 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
no gainsaying that a common intention presupposes prior concert, which requires a prearranged plan of the accused participating in an offence. Such preconcert or preplanning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on the spur of the moment. The existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from the circumstances of the case.
39. The dominant feature for attracting Section 34 of the Indian Penal Code (hereinafter referred to as "the Code") is the element of participation in absence resulting in the ultimate "criminal act".
The "act" referred to in the later part of Section 34 means the ultimate criminal act with which the accused is charged of sharing the common intention. The accused is, therefore, made responsible for the ultimate criminal act done by several persons in furtherance of the common intention of all. The section does not envisage the separate act by all the accused persons for becoming responsible for the ultimate criminal act. If such an interpretation is accepted, the purpose of Section 34 shall be rendered infructuous.
60. Keeping in view the facts of the present case and applying the principles laid down by the Hon'ble Apex Court, it is established that common intention necessitates prior concert which requires a prearranged plan, but such preconcert may develop on the spur of the moment and will make the accused persons responsible for the ultimate criminal act done by several persons. Further, on the basis of evidence borne out from the previous part of the judgment, it is substantiated that all the accused persons in furtherance of their common intention were actively involved in the commission of the alleged offence.
33.1 The Section 34 involves constructive liability and also recognizes the principle of vicarious liability in criminal jurisprudence and therefore it is not applicable in reference to FIR No.52/2012 Page 60 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
Section 392 and Section 394 IPC in view of the citation titled Ganesan v. State represented by Station House Officer in Crl. Appeal no. 903/2021. Hence Section 34 has to be seen in reference to Section 328 IPC and Section 411 IPC. The ingredient of mens rea is essential to establish the offence of Section 411 IPC. Section 34 can be applicable under Section 411 IPC as there could be common intention and common mens rea between the 2 accused to obtain and retain the stolen property. Similarly Section 34 IPC could be applicable under Section 328 IPC as common intention to cause the offence or common knowledge to cause the hurt could be existing between 2 of the accused.
33.2 It was held in case titled Man Singh & Anr vs State of Madhya Pradesh in Cr. A No.312 of 2011 dated 27.04.2022 from Hon'ble High Court of Madhya Pradesh at relevant para that Section 34 IPC does not create a distinct offence. It was laid down that Section 34 does not create a distinct offence but it is a principle of constructive liability. The relevant para are reproduced as hereunder:
It was held in case titled Man Singh & Anr vs State of Madhya Pradesh in Cr. A No.312 of 2011 dated 27.04.2022 from Hon'ble High Court of Madhya Pradesh at relevant para that Section 34 IPC does not create a distinct offence. It was laid down that FIR No.52/2012 Page 61 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
Section 34 does not create a distinct offence but it is a principle of constructive liability. The relevant para are reproduced as hereunder:
15. In case of a related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent.'' (23) So far as next contention of the counsel for the appellants that no conviction for instigation or exhortation can be recorded against the accused appellant Man Singh alleged to have exhorted the actual assailant is concerned, in the case at hand, there is direct and positive evidence that at the instigation of appellant accused Man Singh, appellant-
accused Narendra fired at the deceased. Therefore, in the light of unanimous and categorical statements of prosecution witnesses, the contention of counsel for the appellants is not acceptable. The evidence of witnesses relating to exhortation is clear, cogent and reliable. In view whereof, it cannot be said that appellant accused Man Singh was not sharing common intention with appellant accused Narendra Singh in commission of murder of deceased in question. In this regard, a reliance can be placed on the decision of Rajasthan High Court in the matter of Bhoma Ram Vs. State of Rajasthan 1987 WLN UC 128 wherein, it has been held as under:-
''10. Accused Laxmi Chand and Ram Chandra were convicted with the aid of Sections 34 and 109 IPC. Section 34 IPC does not create a distinct offence. It only lays down the principle of joint criminal liability on the ground that where two or more persons intentionally commit an offence jointly, it is just the same thing as if each of them had done it individually, The existence of common intention is largely inferential. Surrounding circumstances, conduct of the culprits preceding the commission of the offence during its commission and subsequent to commission furnish the FIR No.52/2012 Page 62 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
materials from which inference is to be drawn as to whether the offence was committed in furtherance of the common intention of the culprits. The words spoken by the culprits, the instigation, exhortation and encouragement given by them before and during the commission of the crime are the usual factors from which the inference is to be drawn whether the crime was the out-come of the common intention of the all and the common intention of one was shared by the others. For the applicability of Section 34 IPC, the intention to commit the offence must be common to all the culprits and it must be shared by each of them. In Jai Narain v. State of Bihar, it was observed by their Lordships in para 10 of the judgment that where an offence is committed on the instigation of one of the culprits, that culprit giving the instigation can be safely convicted for the main offence with the aid of Section 34, IPC. 11 Section 109, IPC defines abetment.
Among other things, it speaks that a person abets the doing of a thing, who instigates any person to do that thing. Instigation in law, thus, indicates some active suggestion such as command, order exhortation etc. to the commission of the offence. It is a direct incitement by one to the other to commit the crime. Exhortation by one culprit to the other to commit the offence, constitutes abetment.
12. In the instant case, the evidence of the eye witnesses establishes that accused Laxmi Chand and Ram Chandra said to accused Bhoma Ram, "Here is Milki's servant Madan. Shoot him." The words "shoot him" are clearly indicative that they wanted the deceased to be killed and finished for ever. The pistol was fired by accused Bhoma Ram only after the aforesaid direction, order command or exhortation was given to him by accused Laxmi Chand and Ram Chandra.
13. It was argued by Mr. Doongarsingh that the evidence as regard to the verbal exhortation should not be readily believed.
FIR No.52/2012 Page 63 of 84U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
Oral evidence relating to exhortation is of weak type and the Court should be reluctant to accept that evidence. In support of his contention, Mr. Doongar Singh placed reliance on Jainual Haque v. State of Bihar . It was observed by their Lordships that the evidence of exhortation is by nature weak and conviction for abetment should not be recorded without clear, cogent and reliable evidence in this respect.'' (24) We shall also go back into the history to understand Section 34 of IPC as it stood at the inception and as it exists now. Generally speaking, Section 34 IPC provides an acts done by several persons in furtherance of common intention. When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
(25) In the recent decision of Jasdeep Singh alias Jassu vs. State of Punjab decided on 7th January, 2022 in Criminal Appeal No.1584 of 2021 (Arising Out of SLP (Crl) No. 1816 of 2019) the Hon'ble Apex Court has observed as under in detail:-
''19. On a comparison, one could decipher that the phrase "in furtherance of the common intention" was added into the statute book subsequently. It was first coined by Chief Justice Barnes Peacock presiding over a Bench of the Calcutta High Court, while delivering its decision in Queen v. Gorachand Gope, (1866 SCC OnLine Cal 16) which would have probably inspired and hastened the amendment to Section 34 IPC, made in 1870. The following passage may lend credence to the aforesaid possible view:
"It does not follow that, because they were present with the intention of taking him away, that they assisted by their presence in the beating of him to such an extent as to cause death. If the object and design of those who seized Amordi was merely to take him to the thannah on a charge of theft, and it was no part of the common design to beat him, they would not all be liable for the consequence of the beating merely because FIR No.52/2012 Page 64 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
they were present. It is laid down that, when several persons are in company together engaged in one common purpose, lawful or unlawful, and one of them, without the knowledge or consent of the others, commits an offence, the others will not be involved in the guilt, unless the act done was in some manner in furtherance of the common intention. It is also said, although a man is present when a felony is committed, if he take no part in it, and do not act in concert with those who commit it, he will not be a principal merely because he did not endeavour to prevent it or to apprehend the felon. But if several persons go out together for the purpose of apprehending a man and taking him to the thannah on a charge of theft, and some of the party in the presence of the others beat and ill-treat the man in a cruel and violent manner, and the others stand by and look on without endeavouring to dissuade them from their cruel and violent conduct, it appears to me that those who have to deal with the facts might very properly infer that they were all assenting parties and acting in concert, and that the beating was in furtherance of a common design. I do not know what the evidence was, all that I wish to point out is, that all who are present do not necessarily assist by their presence every act that is done in their presence, nor are consequently liable to be punished as principals."
20. Before we deal further with Section 34 IPC, a peep at Section 33 IPC may give a better understanding. Section 33 IPC brings into its fold a series of acts as that of a single one. Therefore, in order to attract Section 34 to 39 IPC, a series of acts done by several persons would be related to a single act which constitutes a criminal offense. A similar meaning is also given to the word 'omission', meaning thereby, a series of omissions would also mean a single omission. This provision would thus make it clear that an act would mean and include other acts along with it.
21. Section 34 IPC creates a deeming fiction by infusing and FIR No.52/2012 Page 65 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
importing a criminal act constituting an offence committed by one, into others, in pursuance to a common intention. Onus is on the prosecution to prove the common intention to the satisfaction of the court. The quality of evidence will have to be substantial, concrete, definite and clear. When a part of evidence produced by the prosecution to bring the accused within the fold of Section 34 IPC is disbelieved, the remaining part will have to be examined with adequate care and caution, as we are dealing with a case of vicarious liability fastened on the accused by treating him at par with the one who actually committed the offence.
22.What is required is the proof of common intention. Thus, there may be an offence without common intention, in which case Section 34IPC does not get attracted.
23.It is a team effort akin to a game of football involving several positions manned by many, such as defender, mid- fielder, striker, and a keeper. A striker may hit the target, while a keeper may stop an attack. The consequence of the match, either a win or a loss, is borne by all the players, though they may have their distinct roles. A goal scored or saved may be the final act, but the result is what matters. As against the specific individuals who had impacted more, the result is shared between the players. The same logic is the foundation of Section 34 IPC which creates shared liability on those who shared the common intention to commit the crime.
24.The intendment of Section 34 IPC is to remove the difficulties in distinguishing the acts of individual members of a party, acting in furtherance of a common intention. There has to be a simultaneous conscious mind of the persons participating in the criminal action of bringing about a particular result. A common intention qua its existence is a question of fact and also requires an act "in furtherance of the said intention". One need not search for a concrete evidence, as it is for the court to come to a conclusion on a cumulative FIR No.52/2012 Page 66 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
assessment. It is only a rule of evidence and thus does not create any substantive offense.
25.Normally, in an offense committed physically, the presence of an accused charged under Section 34 IPC is required, especially in a case where the act attributed to the accused is one of instigation/exhortation. However, there are exceptions, in particular, when an offense consists of diverse acts done at different times and places. Therefore, it has to be seen on a case to case basis.
26.The word "furtherance" indicates the existence of aid or assistance in producing an effect in future. Thus, it has to be construed as an advancement or promotion.
27.There may be cases where all acts, in general, would not come under the purview of Section 34 IPC, but only those done in furtherance of the common intention having adequate connectivity. When we speak of intention it has to be one of criminality with adequacy of knowledge of any existing fact necessary for the proposed offense. Such an intention is meant to assist, encourage, promote and facilitate the commission of a crime with the requisite knowledge as aforesaid.
28.The existence of common intention is obviously the duty of the prosecution to prove. However, a court has to analyse and assess the evidence before implicating a person under Section 34 IPC. A mere common intention per se may not attract Section 34 IPC, sans an action in furtherance. There may also be cases where a person despite being an active participant in forming a common intention to commit a crime, may actually withdraw from it later. Of course, this is also one of the facts for the consideration of the court. Further, the fact that all accused charged with an offence read with Section 34 IPC are present at the commission of the crime, without dissuading themselves or others might well be a relevant circumstance, provided a prior common intention is duly proved. Once again, this is an aspect which is required to be looked into by the FIR No.52/2012 Page 67 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
court on the evidence placed before it. It may not be required on the part of the defence to specifically raise such a plea in a case where adequate evidence is available before the court.
29.The essence and scope of Section 34 IPC can be borne out of excerpts from the following judgments:
Suresh v State of U.P. ((2001) 3 SCC 673):
"24. Looking at the first postulate pointed out above, the accused who is to be fastened with liability on the strength of Section 34 IPC should have done some act which has nexus with the offence. Such an act need not be very substantial, it is enough that the act is only for guarding the scene for facilitating the crime. The act need not necessarily be overt, even if it is only a covert act it is enough, provided such a covert act is proved to have been done by the co-accused in furtherance of the common intention. Even an omission can, in certain circumstances, amount to an act. This is the purport of Section 32 IPC. So, the act mentioned in Section 34 IPC need not be an overt act, even an illegal omission to do a certain act in a certain situation can amount to an act, e.g. a co- accused, standing near the victim face to face saw an armed assailant nearing the victim from behind with a weapon to inflict a blow. The co-accused, who could have alerted the victim to move away to escape from the onslaught deliberately refrained from doing so with the idea that the blow should fall on the victim. Such omission can also be termed as an act in a given situation. Hence an act, whether overt or covert, is indispensable to be done by a co-accused to be fastened with the liability under the section. But if no such act is done by a person, even if he has common intention with the others for the accomplishment of the crime, Section 34 IPC cannot be invoked for convicting that person. In other words, the accused who only keeps the common intention in his mind, but does not do any act at the scene, cannot be convicted with the aid of Section 34 IPC. xxx xxx xxx
40. Participation in the crime in furtherance of the common FIR No.52/2012 Page 68 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
intention cannot conceive of some independent criminal act by all accused persons, besides the ultimate criminal act because for that individual act law takes care of making such accused responsible under the other provisions of the Code. The word "act" used in Section 34 denotes a series of acts as a single act. What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown not to have dissuaded themselves from the intended criminal act for which they shared the common intention. Culpability under Section 34 cannot be excluded by mere distance from the scene of occurrence. The presumption of constructive intention, however, has to be arrived at only when the court can, with judicial servitude, hold that the accused must have preconceived the result that ensued in furtherance of the common intention. A Division Bench of the Patna High Court in Satrughan Patar v. Emperor, AIR 1919 Pat 111 held that it is only when a court with some certainty holds that a particular accused must have preconceived or premeditated the result which ensued or acted in concert with others in order to bring about that result, that Section 34 may be applied."
Lallan Rai v. State of Bihar, [(2003) 1 SCC 268]:
"22. The above discussion in fine thus culminates to the effect that the requirement of statute is sharing the common intention upon being present at the place of occurrence. Mere distancing himself from the scene cannot absolve the accused -- though the same however depends upon the fact situation of the matter under consideration and no rule steadfast can be laid down therefor."
Chhota Ahirwar v. State of M.P., [(2020) 4 SCC 126]:
"24. Section 34 is only attracted when a specific criminal act is done by several persons in furtherance of the common intention of all, in which case all the offenders are liable for that criminal act in the same manner as the principal offender as if the act were done by all the offenders. This section does FIR No.52/2012 Page 69 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
not whittle down the liability of the principal offender committing the principal act but additionally makes all other offenders liable. The essence of liability under Section 34 is simultaneous consensus of the minds of persons participating in the criminal act to bring about a particular result, which consensus can even be developed at the spot as held in Lallan Rai v. State of Bihar, (2003) 1 SCC 268. There must be a common intention to commit the particular offence. To constitute common intention, it is absolutely necessary that the intention of each one of the accused should be known to the rest of the accused."
Barendra Kumar Ghosh v. King Emperor (AIR 1925 PC 1):
"...... the words of S. 34 are not to be eviscerated by reading them in this exceedingly limited sense. By S. 33 a criminal act in S. 34includes a series of acts and, further, "act" includes omissions to act, for example, an omission to interfere in order to prevent a murder being done before one's very eyes. By S. 37, when any offence is committed by means of several acts whoever intentionally co-operates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. Even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things "they also serve who only stand and wait". By S. 38, when several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act. Read together, these sections are reasonably plain. S. 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself, for "that act" and "the act" in the latter part of the section must include the whole action covered by 'a criminal act' in the first part, because they refer to it. S. 37 provides that, when several acts are done so as to result together in the commission of an offence, the doing of any one of them, with an intention to FIR No.52/2012 Page 70 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
co-operate in the offence (which may not be the same as an intention common to all), makes the actor liable to be punished for the commission of the offence. S. 38 provides for different punishments for different offences as an alternative to one punishment for one offence, whether the persons engaged or concerned in the commission of a criminal act are set in motion by the one intention or by the other."
Mehbub Shah v. Emperor (AIR 1945 PC 148):
"....Section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say "the common intentions of all" nor does it say "an intention common to all." Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. To invoke the aid of S. 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone. This being the principle, it is clear to their Lordships that common intention within the meaning of the section implies a pre- arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre- arranged plan..."
Rambilas Singh & Ors. v. State of Bihar [(1989) 3 SCC 605]:
"7...It is true that in order to convict persons vicariously under section 34 or section 149 IPC, it is not necessary to prove that each and every one of them had indulged in overt acts. Even so, there must be material to show that the overt act or acts of one or more of the accused was or were done in furtherance of the common intention of all the accused or in prosecution of the common object of the members of the unlawful assembly..."FIR No.52/2012 Page 71 of 84
U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
Krishnan & Another v. State of Kerala [(1996) 10 SCC 508]:
"15. Question is whether it is obligatory on the part of the prosecution to establish commission of overt act to press into service section 34 of the Penal Code. It is no doubt true that court likes to know about overt act to decide whether the concerned person had shared the common intention in question. Question is whether overt act has always to be established? I am of the view that establishment of an overt act is not a requirement of law to allow section 34 to operate inasmuch this section gets attracted when "a criminal act is done by several persons in furtherance of common intention of all". What has to be, therefore, established by the prosecution is that all the concerned persons had shared the common intention. Court's mind regarding the sharing of common intention gets satisfied when overt act is established qua each of the accused. But then, there may be a case where the proved facts would themselves speak of sharing of common intention: res ipsa loquitur."
Surendra Chauhan v. State of M.P. [(2000) 4 SCC 110]:
"11. Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture...."
Gopi Nath @ Jhallar v. State of U.P. [(2001) 6 SCC 620]:
"8. ...As for the challenge made to the conviction under Section 302 read with Section 23 IPC, it is necessary to advert to the salient principles to be kept into consideration and often reiterated by this Court, in the matter of invoking the aid of Section 34 IPC, before dealing with the factual aspect of the claim made on behalf of the appellant. Section 34 IPC has been held to lay down the rule of joint responsibility for criminal acts performed by plurality or persons who joined together in doing the criminal act, provided that such commission is in furtherance of the common intention of all of them. Even the FIR No.52/2012 Page 72 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
doing of separate, similar or diverse acts by several persons, so long as they are done in furtherance of a common intention, render each of such persons liable for the result of them all, as if he had done them himself, for the whole of the criminal action - be it that it was not overt or was only covert act or merely an omission constituting an illegal omission. The section, therefore, has been held to be attracted even where the acts committed by the different confederates are different when it is established in one way or the other that all of them participated and engaged themselves in furtherance of the common intention which might be of a pre-concerted or pre- arranged plan or one manifested or developed at the spur of the moment in the course of the commission of the offence. The common intention or the intention of the individual concerned in furtherance of the common intention could be proved either from direct evidence or by inference from the acts or attending circumstances of the case and conduct of the parties. The ultimate decision, at any rate, would invariably depend upon the inferences deducible from the circumstances of each case."
Ramesh Singh @ Photti v. State of A.P. [(2004) 11 SCC 305]:
"12. ...As a general principle in a case of criminal liability it is the primary responsibility of the person who actually commits the offence and only that person who has committed the crime can be held guilty. By introducing Section 34 in the Penal Code the legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention, then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration.......... "
Nand Kishore V. State Of Madhya Pradesh [(2011) 12 SCC FIR No.52/2012 Page 73 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
120)]:
"20. A bare reading of this section shows that the section could be dissected as follows:
(a) Criminal act is done by several persons;
(b) Such act is done in furtherance of the common intention of all; and
(c) Each of such persons is liable for that act in the same manner as if it were done by him alone.
In other words, these three ingredients would guide the court in determining whether an accused is liable to be convicted with the aid of Section 34.
While first two are the acts which are attributable and have to be proved as actions of the accused, the third is the consequence. Once the criminal act and common intention are proved, then by fiction of law, criminal liability of having done that act by each person individually would arise. The criminal act, according to Section 34 IPC must be done by several persons. The emphasis in this part of the section is on the word "done". It only flows from this that before a person can be convicted by following the provisions of Section 34, that person must have done something along with other persons. Some individual participation in the commission of the criminal act would be the requirement. Every individual member of the entire group charged with the aid of Section 34 must, therefore, be a participant in the joint act which is the result of their combined activity.
21. Under Section 34, every individual offender is associated with the criminal act which constitutes the offence both physically as well as mentally i.e. he is a participant not only in what has been described as a common act but also what is termed as the common intention and, therefore, in both these respects his individual role is put into serious jeopardy FIR No.52/2012 Page 74 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
although this individual role might be a part of a common scheme in which others have also joined him and played a role that is similar or different. But referring to the common intention, it needs to be clarified that the courts must keep in mind the fine distinction between "common intention" on the one hand and "mens rea"
as understood in criminal jurisprudence on the other. Common intention is not alike or identical to mens rea. The latter may be coincidental with or collateral to the former but they are distinct and different.
22.Section 34 also deals with constructive criminal liability. It provides that where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. If the common intention leads to the commission of the criminal offence charged, each one of the persons sharing the common intention is constructively liable for the criminal act done by one of them. (Refer to Brathi v. State of Punjab 1991 (1) SCC 519).
23. Another aspect which the court has to keep in mind while dealing with such cases is that the common intention or state of mind and the physical act, both may be arrived at the spot and essentially may not be the result of any predetermined plan to commit such an offence. This will always depend on the facts and circumstances of the case..."
Shyamal Ghosh V. State of West Bengal [(2012) 7 SCC 646)]:
"87. Upon analysis of the above judgments and in particular the judgment of this Court in the case of Dharnidhar v. State of Uttar Pradesh, [(2010) 7 SCC 759], it is clear that Section 34 IPC applies where two or more accused are present and two factors must be established i.e. common intention and participation of the accused in the crime. Section 34 IPC, moreover, involves vicarious liability and therefore, if the FIR No.52/2012 Page 75 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
intention is proved but no overt act was committed, the section can still be invoked. This provision carves out an exception from general law that a person is responsible for his own act, as it provides that a person can also be held vicariously responsible for the act of others, if he had the common intention to commit the act. The phrase "common intention" means a pre-oriented plan and acting in pursuance to the plan, thus, common intention must exist prior to the commission of the act in a point of time. The common intention to give effect to a particular act may even develop on the spur of moment between a number of persons with reference to the facts of a given case."
30. The aforesaid principle has also been dealt with in extenso by the Apex Court in Virendra Singh V. State of Madhya Prades ((2010) 8 SCC 407) through the following paragraphs:
"15. Ordinarily, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if he had the common intention to commit the offence. The words "common intention" implies a prearranged plan and acting in concert pursuant to the plan. It must be proved that the criminal act was done in concert pursuant to the prearranged plan. Common intention comes into force prior to the commission of the act in point of time, which need not be a long gap. Under this section a pre- concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of the crime showing a prearranged plan and prior concert. The common intention may develop in course of the fight but there must be clear and unimpeachable evidence to justify that inference. This has been clearly laid down by this Court in the case of Amrik Singh & Ors. v. State of Punjab, 1972 (4) SCC (N) 42:1972 CriLJ 465.FIR No.52/2012 Page 76 of 84
U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
16. The essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. Undoubtedly, it is difficult to prove even the intention of an individual and, therefore, it is all the more difficult to show the common intention of a group of persons. Therefore, in order to find whether a person is guilty of common intention, it is absolutely necessary to carefully and critically examine the entire evidence on record. The common intention can be spelt out only from the evidence on record.
17. Section 34 is not a substantive offence. It is imperative that before a man can be held liable for acts done by another under the provisions of this section, it must be established that there was common intention in the sense of a prearranged plan between the two and the person sought to be so held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, this section cannot apply.
xxx xxx xxx
36. Referring to the facts of this case, the short question which arises for adjudication in this appeal is whether the appellant Virendra Singh can be convicted under section 30 with the aid of section 34 IPC. Under the Penal Code, the persons who are connected with the preparation of a crime are divided into two categories:
(1) those who actually commit the crime i.e. principals in the first degree; and (2) those who aid in the actual commission i.e. principals in the second degree. The law does not make any distinction with regard to the punishment of such persons, all being liable to be punished alike.
37. Under the Penal Code, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if he had a common intention to commit the acts or if the FIR No.52/2012 Page 77 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
offence is committed by any member of the unlawful assembly in prosecution of the common object of that assembly, then also he can be vicariously responsible. Under the Penal Code, two sections, namely, Sections 34 and 149, deal with the circumstances when a person is vicariously responsible for the acts of others.
38. The vicarious or constructive liability under Section 34 IPC can arise only when two conditions stand fulfilled i.e. the mental element or the intention to commit the criminal act conjointly with another or others; and the other is the actual participation in one form or the other in the commission of the crime.
39. The common intention postulates the existence of a prearranged plan implying a prior meeting of the minds. It is the intention to commit the crime and the accused can be convicted only if such an intention has been shared by all the accused. Such a common intention should be anterior in point of time to the commission of the crime, but may also develop on the spot when such a crime is committed. In most of the cases it is difficult to procure direct evidence of such intention. In most of the cases, it can be inferred from the acts or conduct of the accused and other relevant circumstances. Therefore, in inferring the common intention under section 34 IPC, the evidence and documents on record acquire a great significance and they have to be very carefully scrutinized by the court. This is particularly important in cases where evidence regarding development of the common intention to commit the offence graver than the one originally designed, during execution of the original plan, should be clear and cogent.
40. The dominant feature of Section 34 is the element of intention and participation in action. This participation need not in all cases be by physical presence. Common intention implies acting in concert.
41. The essence of Section 34 IPC is a simultaneous consensus FIR No.52/2012 Page 78 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
of the minds of the persons participating in criminal action to bring about a particular result. Russell in his celebrated book Russell on Crime, 12th Edn., Vol. 1 indicates some kind of aid or assistance producing an effect in future and adds that any act may be regarded as done in furtherance of the ultimate felony if it is a step intentionally taken for the purpose of effecting that felony. It was observed by Russell that any act of preparation for the commission of felony is done in furtherance of the act.
42. Section 34 IPC does not create any distinct offence, but it lays down the principle of constructive liability. Section 34 IPC stipulates that the act must have been done in furtherance of the common intention. In order to incur joint liability for an offence there must be a prearranged and premeditated concert between the accused persons for doing the act actually done, though there might not be long interval between the act and the premeditation and though the plan may be formed suddenly. In order that Section 34 IPC may apply, it is not necessary that the prosecution must prove that the act was done by a particular or a specified person. In fact, the section is intended to cover a case where a number of persons act together and on the facts of the case it is not possible for the prosecution to prove as to which of the persons who acted together actually committed the crime. Little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with section 34."
(26) The well-established principle of law underlying provisions of Section 34 of IPC emerges from decision of Justice Vivian Bose in Pandurang, Tukia and Bhillia vs. The State of Hyderabad 1955 SCR (1) 1083 wherein it has been held as under:-
"33. Now in the case of Section 34 we think it is well established that a common intention presupposes prior concert. It requires a pre-arranged plan because before a man can be FIR No.52/2012 Page 79 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all: Mahbub Shah v. King Emperor [72 IA 148 at 153 and 154]. Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a pre- arranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case: Barendra Kumar Ghosh v. King-Emperor [72 IA 148 at 153 and 154] and Mahbub Shah v. King-Emperor [52 IA 40 at 49] . As Their Lordships say in the latter case, "the partition which divides their bounds is often very thin: nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice". 34. The plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly, as for example when one man calls on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault. There is then the necessary meeting of the minds. There is a pre-arranged plan however hastily formed and rudely conceived. But pre-arrangement there must be and premeditated concert. It is not enough, as in the latter Privy Council case, to have the same intention independently of each other, e.g., the intention to rescue another and, if necessary, to kill those who oppose." (emphasis supplied) (27) Similarly, in the matter of Virendra Singh v. State of MP (2010) 8 SCC407 the Hon'ble Apex Court has explained the ambit of words "in furtherance of common intention of all" and has observed as under:-FIR No.52/2012 Page 80 of 84
U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
''15. Ordinarily, a person is responsible for his own act. A person can also be vicariously responsible for the acts of others if he had the common intention to commit the offence. The words "common intention" imply a prearranged plan and acting in concert pursuant to the plan. It must be proved that the criminal act was done in concert pursuant to the prearranged plan. Common intention comes into force prior to the commission of the act in point of time, which need not be a long gap. Under this section a preconcert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of the crime showing a prearranged plan and prior concert. The common intention may develop in course of the fight but there must be clear and unimpeachable evidence to justify that inference. This has been clearly laid down by this Court in Amrik Singh v. State of Punjab [(1972) 4 SCC (N) 42 : 1972 Cri LJ 465] ."
(28) Followings are fundamental principles underlying Section 34 of IPC:-
''(i) Section 34 does not create a distinct offence, but is a principle of constructive liability;
(ii) In order to incur a joint liability for an offence there must be a pre-arranged and pre-
mediated concert between the accused persons for doing the act actually done;
(iii) There may not be a long interval between the act and the pre-meditation and the plan may be formed suddenly. In FIR No.52/2012 Page 81 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
order for Section 34 to apply, it is not necessary that the prosecution must prove an act was done by a particular person; and
(iv) The provision is intended to cover cases where a number of persons act together and on the facts of the case, it is not possible for the prosecution to prove who actually committed the crime.
(29) The above fundamental principles have been adopted and applied by Hon'ble Apex Court in the matter of Chhota Ahirwar v. State of MP (2020) 4 SCC 126 as under:-
"26. To attract Section 34 of the Penal Code, no overt act is needed on the part of the accused if they share common intention with others in respect of the ultimate criminal act, which may be done by any one of the accused sharing such intention. [See Asoke Basak [Asoke Basak v. State of Maharashtra, (2010) 10 SCC 660 :
(2011) 1 SCC (Cri) 85] , SCC p. 669]. To quote from the judgment of the Privy Council in the famous case of Barendra Kumar Ghosh [Barendra Kumar Ghosh v. King Emperor, 1924 SCC OnLine PC 49 : (1924-25) 52 IA 40 :
AIR 1925 PC 1], "they also serve who stand and wait".
27. Common intention implies acting in concert. Existence of a prearranged plan has to be proved either from the conduct of the accused, or from circumstances or from any incriminating facts. It is not enough to have the same intention independently of each other."
(30) In the recent judgment of Sandeep v. State of Haryana 2021 SCC Online SC 642, a two-judge Bench of the Hon'ble Apex Court has held that an exhortation given by an accused FIR No.52/2012 Page 82 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
immediately before a co-accused fired a shot killing the deceased would prove his involvement in the crime beyond reasonable doubt. Accordingly, this Court upheld the conviction of accused under Section 302 read with Section 34 of IPC.
Therefore to invite application of Section 34 IPC the ingredients of main offence must be proved on record. When the prosecution has failed to prove ingredients of main offence/ independent offence which are Section 328 & 411 IPC in the present case then the accused person could not be held liable for the dependent offence which is Section 34 IPC. The first condition is that some offence must have been convicted and then only Section 34 IPC could have been applied. In such view of the matter it is held that prosecution has failed to prove the ingredients of Section 34 IPC against the accused persons and therefore the accused stands acquitted of the said offence.
34. Hence the accused Manoj Kumar Shah is acquitted of all the offence charged against him and it is held that prosecution has failed to prove the charge levelled against the accused. Accordingly, the accused Manoj Kumar Shah stands acquitted. His earlier personal bond is cancelled and surety is discharged and documents, if any, be returned to the surety and endorsement on security documents is allowed to be de- endorsed. In terms of Section 437A Cr. P. C., accused has FIR No.52/2012 Page 83 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.
furnished his bail bonds as directed which will be in force for period of six months from the date of this judgment. Case property be confiscated to the State.
File be consigned to Record Room.
JOGINDER Digitally JOGINDER signed by Announced in the open court PRAKASH PRAKASH NAHAR Date: 2024.02.16 on dated 16.02.24 NAHAR 15:43:10 +0530 (JOGINDER PRAKASH NAHAR) Additional Sessions Judge (FTC-I) Tis Hazari Court/Delhi/16.2.24 FIR No.52/2012 Page 84 of 84 U/s 394/328/411/34 IPC P. S. Karol Bagh State vs. Manoj Kuma Shah & Anr.